Landlord not protecting our deposit - small claims court process help!

jess1509_2

Hi there,

Been trying to find some sort of precedent for the situation i'm currently in but can't seem to find any at all. I have a horrible feeling that me and my former housemate might be the first ones in this situation which is starting to unnerve me a bit!

We moved into a house in June 2007 and paid our deposit to an agency on behalf of the landlord. We were aware at the time that our deposit hadn't been protected as we received no notice of the DPS registration.

We moved out of the property about 18 months later, and the landlord tried to throw £80 cleaning charges on us, which was unsubstantiated. I wrote a letter of intent to them, saying that we didn't believe the charges were fair. I also stated that we were also aware that our deposit hadn't been protected as was the legal requirement and that, under legislation, we were fully able to take them to court for non-registration and they would be required to pay us back the deposit in full plus 3x the deposit on top.

We heard nothing, so about a month later we filed a claim with the small claims court for the full return of 4x deposit plus costs.

The agency lawyered up and replied saying that, as they only accepted the deposit on behalf of the landlord, and weren't themselves the landlord, they had no requirement to register the deposit. My ex-housemate's been pretty good and has looked into it and under the letter of the law whoever accepts the deposit also has the responsibility to register it.

We have submitted this as our case etc., and now finally heard from the court that a hearing date's been set for the end of August, and we have to pay the £300 court fees up front.

Obviously this can be claimed back as part of the costs, but given that the agency haven't conceded given all the evidence i am starting to get a little worried!

Does anyone have any experience of anything like this? Or even how the small claims hearing will happen? As far as i'm aware all we will be required to do is submit the actual evidence (ie tenancy agreement, deposit receipt etc) and it shouldn't be too much of a big deal, right?

Any help/advice would be much appreciated!

Thanks

Jess

sooz

your housemate is wrong.
the agent is just that...agent for the LL. The LL is ultimately responsible, and it is him you should be chasing, not the LA.

look here https://www.depositprotection.com/Public/FAQs.aspx?section=General under 'who is responsible for protecting the deposit?'

jess1509_2

this is what was put in our case:

1. I refer you to Chapter 34 of the Housing Act, 2004 212 (9) which states that "reference to a Landlord or Landlords in relation to any shorthold tenancy or tenancies includes reference to a person or persons acting on his or their behalf in relation to the tenancy or tenancies".

2. The deposit was actually paid to the Agents on behalf of the Landlords.

3. The Agents acting on behalf of the Landlords should have dealt with our deposit "in accordance with an authorised Scheme" (Section 213(i) Housing Act, 2004. They did not do this.

4. Section 214 Housing Act, 2004 states, inter alia, that the Court must "order the person who appears to be holding the deposit to repay it to the applicant."


The deposit was paid directly to the agency. Our tenancy agreement is with the actual landlord, but also signed by the agency.

this is all very confusing

sooz

The agency is not responsible. Ultimately the LL is, and you are not party to the agreement between the LL & his agent. You need to sue the LL, & he in turn may choose to sue his agent.

Who exactly is holding the deposit? In whose bank account is it? Are you sure that the deposit is not protected by an insurance policy, rather than being held in the custodial scheme?

Do you have the LL's address?

Have you listed the LL as well as the agent on the documents you submitted to the court?

jess1509_2

When we moved out of the property we asked the agency for the details of where the deposit was protected. They said they couldn't find it on their system and would send it through the post, but we never got it. Their defense has admitted that the deposit hasn't been protected, but they said that we should be suing the landlord rather than the agency.

we heard back from the small claims court asking why we were suing the agent rather than the landlord (to ensure that the case would be heard), we told them what's above, and they replied saying something like "further to the information provided by the claimant, the case will be heard..." bla bla bla

The following are bits from the DTI's guidance for landlords and agents:

Within 14 days of taking the deposit, the landlord or agent must provide the tenant with details of how the deposit is being protected including:
• The contact details of the tenancy deposit scheme selected
• The landlord or agent’s contact details
• How to apply for the release of the deposit
• Information explaining the purpose of the deposit
• What to do if there is a dispute about the deposit


The tenant can apply to the local county court. The court can order the landlord or agent to either repay the deposit to the tenant or protect it in a scheme. If the landlord or agent has not protected the deposit, and they fail to do so within 14 days, they will be ordered to pay the tenant three times the amount of the deposit.


which doesn't seem to be explicit about whether the landlord or agent is responsible. but, given that the housing act says "reference to a Landlord or Landlords in relation to any shorthold tenancy or tenancies includes reference to a person or persons acting on his or their behalf in relation to the tenancy or tenancies", then surely we're still ok as the agent was acting on their behalf throughout the tenancy.

i appreciate now that it would have been safer to go directly to the landlord, but we didn't, which is fair enough. even despite all the above, which is the official literature, are we still in the wrong?

sooz

This may be of interest
http://www.landlordzone.co.uk/forums/showthread.php?t=18854

Sadly there is no update as to whether the LL was successful in claiming his agent was responsible, or not.

Since your court date is not til August, are you able to amend the paperwork, & serve it on your LL instead? I have no idea if this is possible, but if it is, it may save you the additional costs of a second case & fees.

Have you had the rest of your deposit, minus the £80 disputed for cleaning, back yet?
If you aware when you moved in that the deposit wasn't protected, why did you not bring the matter up then, to avoid this situation?

Debt_Free_Chick

Who have you filed the claim against? Can you not file the claim against the LL and his agent, jointly?

jess1509_2

right - so in that instance, the judge added the landlord as a defendant at the hearing.

I might see if we can amend the paperwork then. even though there seems to be a lot of conflicting advice about who we're supposed to be claiming against, it's obvious that if the claim was against the LL we'd have a much stronger case.

We've not had any of the deposit back at all.

We obviously didn't know that our deposit hadn't been protected until after the 14-day window. We had no problems with this at all to be honest. The benefit of any protection would be the knowledge that any unfair retention of the deposit could be argued through the service, but i guess we just thought we could fall back on the threat of going to small claims instead.

The letter of intent that we sent to them originally basically said that we didn't think the cleaning charges were fair, and if they would agree to write them off then we would be happy to overlook the fact that the deposit hadn't been protected.

furfoxache

Hello, I've recently been to court over a similar matter.


We were told that the agent is responsible for 1 x the deposit (the original deposit) and the landlord is responsible for the 3 x deposit. This is written into the lawbooks and is up to the Judge's interpretation of what a landlord is. The "managing agents" in our case, were just agents according to the judge. We therefore had to take the landlord AND the agents to court, rather than just the agents, even though it was their fault the law was broken. The judge just allowed us to amend the forms and have a second hearing.

Hope this helps.

jess1509_2

thanks for that - really helpful!

i'll see if we can get the papers changed to have the landlord added as a second defendant.

jess1509_2

thought you might be interested - made a similar post on landlordZONE (thanks to Wench for the suggestion!)

got this reply:

You are right. The duty to protect deposit is extended to Letting Agent (A), by s.212(9); so you as T can take action against both or either of L or A. Moreover, if A never divulged L's contact detials by s.48 Notice, A's own divulged details hold good for them both.