Tenancy & Deposit Query

cgascoine

Hi all
I am having a problem with my flat tenancy and wanted some advice on what to do.

Timeline:
In November 2009, tenants A, B & C moved in to the 3 bed flat, and the assured tenancy agreement came to an end in November 2010. It has never been renewed. Deposit was £1890, which they each paid £630 towards.
June 2010 - tenant C is replaced by tenant D.
January 2011 - tenant D is replaced by tenant E.
May 2011 - tenant A is replaced by tenant F.
July 2011 - tenant B is replaced by tenant G.

Problem:
I moved into a flat on 8th May 2011 (I am tenant F), and paid a deposit of £630 to tenant A who was moving out. She assured me that the agent knew I was moving in, and was sorting out a new tenancy agreement, although I telephoned him to make sure and he verbally agreed he would draw one up and post it to us straight away. Tenant A and I signed a piece of paper along with the other 2 tenants at the time (B & E) before I moved in to say that the total deposit of £1890 was to be held by tenants B, E & F from this point forward.
No tenancy agreement arrived (I emailed on 13th May 2011 but never received a reply), although as tenant B was planning to move out, we decided we would wait until a replacement flatmate moved in before we got one sorted. The agent was contacted about this and had no objections to a new tenant moving in.

Tenant B moved out in July and was replaced by tenant G. Tenant G paid tenant B the deposit, and there is an email from B to say that this transfer happened, and she is no longer owed any money. After a few weeks we still hadn't received a new tenancy agreement, so on the 25th August 2011 I emailed the agent to ask for one. He replied saying there was an outstanding amount on the account, and so technically this had to be brought to zero before a tenancy agreement could be provided. I was confused as to what was outstanding, as we all have standing orders for the rent. It turns out that one month's rent was missed in June 2010 by either tenant C or D (neither paid rent this month on changeover), and £100 is owed by tenant B from September 2010 (rent £100 short).
I contacted tenant B about this, who said that previously they all had to provide copies of bank statements to prove they had paid the aforementioned money, and that as far as B was concerned, it was all sorted. B was fine to have the agent contact her directly, and so we provided the agent with her contact details and asked him to sort it out. The agent has not done so.
In addition to this, over the last couple of months we have been faced with a damp and mould problem, and I have had to throw away several pairs of shoes and clothes as a result. My flatmates have also had to throw away personal items due to mould damage. The agent came round to address this problem and wanted to sort out the tenancy agreement as well, as they didn't want to supply dehumidifiers without an agreement in place. The damp was apparently caused by a slow leak under the bath, which has now been sorted by a builder, and an electrician is putting in a proper extractor fan in the bathroom this week. The mould has been removed and the bathroom re-painted, although the agent is still refusing to provide dehumidifers to remove any moisture that may still be in the flat so I am worried about storing anything under my bed still and in my wardrobe.
Now we are stuck in the flat with no tenancy agreement, and no deposit security. The agency is saying that legally they have to pay the deposit back to the original three tenants A, B & C, minus the outstanding money. We have emailed the agency asking how and when they will do this, and whether we have to then pay a fresh deposit. We have not yet received a response.
I want to know who is responsible for recovering the outstanding balance (us or the agency) and where we stand legally with recovering our deposit money, and how best to go about it. We have considered small claims court but I am not sure whether this will be any good and may take a long time?
Also, I wanted to check who they would pay the deposit money back to; would the outstanding balance be split between the original tenants, or will A get the full amount back, B minus £100 and C minus the full rent?

Any advice would be greatly appreciated!

Thank you

Celia

BitterAndTwisted

Was the original deposit lodged with one of the three schemes or not?

cgascoine

Hi BitterAndTwisted

Thank you for your reply, I have checked and the original deposit is registered under the Tenancy Deposit Scheme.

I just spoke to the agent, and he says he doesn't know what to do about the situation which is helpful! I suggested he contact the original tenants to recoup the money because I can't see another solution?

Celia

jjlandlord

OP and other "new" co-tenants never paid any deposit to the landlord, so I don't see why they are expecting a refund from them.

This is another story of a change of joint-tenants being managed unprofessionally by the landlord/agent.

Tenants should only pay deposits to the landlord/agent and have a proof in writing. Never pay to a departing tenant.

BitterAndTwisted

I suspect that when the tenancy ends the original deposit will be repaid to whichever of A,B or C who was named as the "lead tenant" with DPS. As you can see that opens up a very real possibility of the following tenants not seeing a penny of their own deposits back. Quite a lot depends on how decent and honest either A,B or C wants to be. I would be giving very careful consideration to not paying the last or the last two month's rent if I was still a tenant when the tenancy ends.

The easiest way (but the least scrupulous) would be to find another tenant to take my place, take their deposit and head for the hills.

jjlandlord

BitterAndTwisted wrote: »

I suspect that when the tenancy ends the original deposit will be repaid to whichever of A,B or C who was named as the "lead tenant" with DPS.

Yes. But they (agent) should have done that when A,B and C tenancy ended.

BitterAndTwisted wrote: »

As you can see that opens up a very real possibility of the following tenants not seeing a penny of their own deposits back.

Imo, there's a valid claim that they did not pay any deposit as far as landlord is concerned since they paid outgoing tenant directly.

BitterAndTwisted wrote: »

Quite a lot depends on how decent and honest either A,B or C wants to be

That's the key indeed.

cgascoine

Thank you all.

It is definitely a case of bad management by the agency, and naivety on our parts I guess.

I would not be able to find another tenant to take my place, I cannot morally do this. I would lose sleep over it and would ultimately end up with my replacement hunting me down when they found out.

I have considered withholding rent as a means of getting my deposit back, although wouldn't that put me in immediate danger of being evicted? And could the agency/landlord then take me to court to recover the rent?

Can we take the original tenants to small claims to get our money back from them if need be?

BitterAndTwisted

I said "when the tenancy ends" not when you decided to withhold the rent. Naturally, if you get into rent-arrears the landlord could decide to evict you but they could only do that once they had sought to bring the tenancy to an end and not before. At which point they could and should seek to make a deduction from the original deposit for the arrears.

Naturally, should your deposit not be returned to you WHEN THE TENANCY ENDS you can go to the Small Claims Court IF you have any documentary evidence of your having paid a deposit to whichever named individual it was.

cgascoine

The problem is though, obviously the tenancy ended in Nov 2010 and hasn't been renewed, and the agency is still holding the original deposit. I have been paying rent each month, but have no formal agreement.

BitterAndTwisted

Nope, the tenancy has not ended. It's now a statutory periodic tenancy. This means that it can be brought to an end by the landlord giving two month's notice or the tenant (Messrs A, B or C) one month.

Look at it this way: should there be rent-arrears or damage to the property the only parties that can be chased for any monies by the landlord are the original joint-tenants, not the three of you who are still living there.

tbs624

You pay rent, you have occupation of the property so therefore there is a contract.LL/LA is legally obliged to provide you with written basic terms of your tenancy within 28 days, if you make the request in writing. This is regardless of whether rent payment is outstanding.

(They are also required to give you a name/address for the LL within 21 days of receiving a written request from you).

I can't trawl through the whole of that long OP but essentially as jjlandlord has said Ts should absolutely never do things this way. Deposit has to be received by the LL from the T direct. Do you have any formal evidence that you and the other replacement Ts did in fact pass money on to outgoing Ts in respect of the deposit? Do you have forwarding /contact info for any of these other Ts?

If you then you should ask the LL/LA to talk to the scheme about updating the tenant details.This is something that deposit cheme members are supposed to do as a matter of course. The scheme is likely to try to contact the original Ts to corroborate the LA's/your version of events.Have you tried talking direct to anyone at the scheme?

On the unpaid rent issue, was that original tenancy agreement one which made all T's "jointly and severally liable"? Has the LA issued all ts with a formal rent statement? If not ask for one.

If you have repairs issues then notify the LL/LA in writing & talk to the tenancy relations officer ( private sector) at the local Council for further guidance.

If the LA is a member of any "body" with a code of conduct such as ARLA, NALs, NAEA then I would write a formal letter of complaint.