Rental Deposit Dispute - Overseas Landlord

Jamgo

Hi, first time poster, please excuse any breaches of protocol...

Bit of an odd and frustrating one. Settle in...

We moved out of our rented home in May, and have been disputing claims against our deposit since that time with the agents acting on behalf of the Landlord. We believe we are completely within our rights to do so, have a comprehensive case with respect to check-in/check-out documentation, discrepancies, and other correspondence that proves we haven't incurred these charges. We were particularly strident about this because we had looked after the house very well - as our home - and were being asked to leave after only a year for reasons that were nothing to do with us at all (apparently from what we could tell, the landlord had simply "fallen out" with the agents managing the property, but the actual reasons for being served notice were never actually made clear to us - they were (and I realise you only have my word for this so you'll have to trust me) nothing to do with our conduct).

An agreement was attempted to be made by our agents in the period afterward, but they simply repeatedly (and very slowly via email tennis) introduced new and different charges each time we dealt with an existing one. Just before the 90-day TDS period was due to elapse, they told us that the landlord was proceeding to submit the dispute to TDS for arbitration.
We were pleased as we had planned to do this anyway and looked forward to everything being sorted out.

Unfortunately, we left it to her to do this, and didn't actually follow this up ourselves.

(Yep, I know - mistake, error , never leave it to someone else to do what you can do yourself. Mea culpa. But we operated on the assumption that even if this wasn't sorted out via arbitration, there'd be a chance to pursue other avenues to get our money back as a worst case scenario.)

In the event, she didn't actually submit the dispute to TDS (despite saying she was going to), and the time has now passed in which we can do it. We took our eye off the ball, but frankly didn't think this was the end of the world as I said.

So.... next step is obviously Small Claims Court, send a pre-court letter, etc, but justice here we come, right?

Here's where it gets complicated. :eek:

The deposit is being held by the agents who state that they are protecting it under the Deposit Protection Laws.
The landlord lives overseas (Australia).

We can't raise a Small Claim against the Landlord as she lives overseas, and doesn't actually have the money to return to us anyway. So she can't be named as a defendant.
The agent is saying that they can't give the money back as it needs her agreement to do so, and that we can't take them to the Small Claims Court as defendants as they have and are continuing to operate within the Deposit Protection laws, and are "obliged" to hold the money until an agreement is reached.

So as it stands, our money, which has not been proven by any court, abitration or otherwise to be entitled to be used for repairs, is now sitting in the agent's bank account. We're not able to pursue this via the small claims court, and we can't take this to arbitration as the window for doing this has closed.

I have deep suspicions about the agent's position, as they are basically indicating that they are going to hold the money indefinitely and we can't do anything about it except contact the landlord and come to an agreement ourselves (we don't have any contact details for them even if we wanted to, and we don't want her to have a penny of our money after all the upset, cost and upheaval we went through having to move twice in 13 months), swallow our pride and walk away, or pay for a solicitor to chase this (which is not worth it for the sum involved).

My gut feeling is that they are the defendant that should be named, and we have every right to take them to the small claims court to get our money back. Am I wrong?

Sorry for the length of this post.

G_M

Jamgo wrote: »

The deposit is being held by the agents who state that they are protecting it under the Deposit Protection Laws.
which scheme?(Deposits )

The landlord lives overseas (Australia).

We can't raise a Small Claim against the Landlord as she lives overseas,
Rubbish. You have a contract with the LL and an address "for the serving of notices"- at least you should have( Landlord and Tenant Act 1987 ). You serve court papers on the LL at that address. If she does not receive them, not your fault orproblem. If she does not defend the case, you win.

and doesn't actually have the money to return to us anyway.
she owns a property in the UK. Ultimately (if you win) you can place a Charge on her property (plus I wonder how you know so much about her finances....)

So she can't be named as a defendant.
Your contract is with the landlord. She MUST be named as defendant

The agent is saying that they can't give the money back as it needs her agreement to do so,
Correct -your contract is with the LL. The agent just acts on the LL's behalf ie takes her instructions

and that we can't take them to the Small Claims Court as defendants
yesyou can- you can name them as joint defendants

as they have and are continuing to operate within the Deposit Protection laws, and are "obliged" to hold the money until an agreement is reached.
That does not stop you suing them, and the LL.

So as it stands, our money, which has not been proven by any court, abitration or otherwise to be entitled to be used for repairs, is now sitting in the agent's bank account. We're not able to pursue this via the small claims court,
Wrong. Who is advising you? The agent? :rotfl:
and we can't take this to arbitration as the window for doing this has closed.

.

Does that answer your questions?

Guest101

What G_M said, I would serve the LL (and LA as joint defendants) or just for CC purposes, a letter before action, giving them 10 days to return the deposit in full before you proceed with court action.

ValHaller

Guest101 wrote: »

What G_M said, I would serve the LL (and LA as joint defendants) or just for CC purposes, a letter before action, giving them 10 days to return the deposit in full before you proceed with court action.

Agree.

And in your position I would make the point that you may seek to secure any judgement against the property. The LL may feel secure being abroad, but securing against the property will leave the owner with a problem when they come to dispose of the property, so they may see sense and judge it is better to pay the amount now rather than let it go to court and cause complications on a sale..

Jamgo

G_M wrote: »

Does that answer your questions?

Thanks so much for this - it does answer a lot of questions, but inevitably raises a few too.

1. @G_M -The address given for the landlord on the tenancy agreement was that of the agents. According to your advice, I would therefore serve the notice at that address - is this "care of" the agents or is that unnecessary?

2. @G_M & @Valhalla: I don't understand what's meant by placing a "charge on the property" - could you explain? To clear up the comment about the landlord's finances, I simply meant she hasn't physically got the disputed sum in her possession (as it's being held by the agents) so to pursue her seemed a strange thing to do - you've cleared that particular part up though, so thank you!

3. This one's @Guest101 - the pre-court practice guidance template suggests sending a preliminary letter outlining the proposed action and allowing 28 days for a response. Is there a reason you suggest 10 days only? Given the letter needs to find its way to Australia, I'm wary that this will seem unreasonable.

Thanks again to everyone who took the time to answer.

ValHaller

Jamgo wrote: »

2. @G_M & @Valhalla: I don't understand what's meant by placing a "charge on the property" - could you explain?

A charge is registered at the Land Registry against the property. It simply means that you have stuck your claim onto the property rather than on her. It stops anyone else from buying the property.

If she has moved to Australia and has decided to stay, she may only be keeping the property on in order to sell when the market gets better. Putting a charge on will be a spoke through her wheel.

Jamgo

ValHaller wrote: »

A charge is registered at the Land Registry against the property. It simply means that you have stuck your claim onto the property rather than on her. It stops anyone else from buying the property.

If she has moved to Australia and has decided to stay, she may only be keeping the property on in order to sell when the market gets better. Putting a charge on will be a spoke through her wheel.

Thank you, that's perfect (and apologies for mis-spelling your username!)

benjus

I can't see why it would be necessary to put a charge on the property in this case - wouldn't the court simply instruct the Agent to return the deposit to the tenant, if the tenant wins the case? It's normal practice for the Agent to hold the deposit in their client account and protect it using an insurance-backed scheme (instead of using the custodial scheme, where DPS holds the deposit money), but the court would ultimately have authority to force the Agent to return it.

I suppose there's the question of costs, but that wouldn't be the tenant's concern if they win.

ValHaller

benjus wrote: »

I can't see why it would be necessary to put a charge on the property in this case - wouldn't the court simply instruct the Agent to return the deposit to the tenant, if the tenant wins the case? It's normal practice for the Agent to hold the deposit in their client account and protect it using an insurance-backed scheme (instead of using the custodial scheme, where DPS holds the deposit money), but the court would ultimately have authority to force the Agent to return it.

I suppose there's the question of costs, but that wouldn't be the tenant's concern if they win.

If the Agent pays up, then no need to place a charge.

But if you are going to write a Letter Before Action, then you might as well make the point thta you would go as far as placing a charge, to give them an opportunity to reflect on the folly of letting the matter run any further.

Guest101

Jamgo wrote: »

Thanks so much for this - it does answer a lot of questions, but inevitably raises a few too.

1. @G_M -The address given for the landlord on the tenancy agreement was that of the agents. According to your advice, I would therefore serve the notice at that address - is this "care of" the agents or is that unnecessary?

2. @G_M & @Valhalla: I don't understand what's meant by placing a "charge on the property" - could you explain? To clear up the comment about the landlord's finances, I simply meant she hasn't physically got the disputed sum in her possession (as it's being held by the agents) so to pursue her seemed a strange thing to do - you've cleared that particular part up though, so thank you!

3. This one's @Guest101 - the pre-court practice guidance template suggests sending a preliminary letter outlining the proposed action and allowing 28 days for a response. Is there a reason you suggest 10 days only? Given the letter needs to find its way to Australia, I'm wary that this will seem unreasonable. - Do you not have a UK address for the purpose of serving notice? The LL must have one. The letter is considered served 2 days after sending, if sent first class. Ten days is plenty for them to confirm return of deposit, but you can say 28 days. I wouldnt send it to australia, it'll be meaningless in a UK court. And i doubt that the address in OZ is the one on the tenancy.

Thanks again to everyone who took the time to answer.

Answer in red above

Thrugelmir

ValHaller wrote: »

But if you are going to write a Letter Before Action, then you might as well make the point thta you would go as far as placing a charge, to give them an opportunity to reflect on the folly of letting the matter run any further.

Letter before action is highly recommended. As formalises the situation. Should the matter go to court puts the Agents on the defensive as well.