Letting agent not protected tenants deposit

bobbydavro

A landlord here,

tenants moved into my property on the 7th June 2013, WM Letting agents Paddock Wood took £1450 deposit from the tenants, Two weeks later I received a letter confirming the deposit has been protected with MYDEPOSITS scheme.

15th September I called W&M Letting agent asking for confirmation no./ certificate number, I was fobbed off.

So I then called MYDEPOSITShttp://www.mydeposits.co.uk and was told on four occasions in one day that they do not have the tenants deposit.

17th September- Certificate number received from W&M Letting agentby email. No official documentation received.

18th I called MYDEPOSITS to confirm the certificate number. I was told to my surprise W&M Letting agent took the insurance out online only on the 17th of September 2013.

I sent an email for W&M Letting agent stating the facts and asking for an explanation why they have not abided by the new legislation and have fraudulently sent me incorrect information knowing it was untrue.

W&M Letting agent have replied saying for data protection of the tenant: NO COMMENT

here is the legislation-
https://www.depositprotection.com/legislation

"From 6th April 2012, deposits for all assured short hold tenancies (ASTs) in England and Wales must now be protected within 30 calendar days of receipt by the landlord, this change is as a result of the Localism Bill 2011."

I have asked W&M Letting agent to return my tenants deposit to my tenant, they are refusing saying the tenancy terms have not finished (06th June 2014 is the end date)

Please can anyone advise how do I proceed in this matter? Ie how do I get W&M Letting agent to return my tenants deposit.

Do I need to report the letting agent and if so to whom/ which governing body?

Many thanks in advance

Guest101

Dont worry anyone who's going to advise you (IE me) knows the legistlation.

Kudos to you for following this up.

1st of all: are they managing the property for you, are you paying them a fee every month?

2nd: data protection legislation is the best/worst thing to happen. It is not a blank slate to not answer questions, there is nothing in the question you asked which could in any way be for the data protection of the tenant. Anyway, all the information they have on the tenant they should have passed onto you! So this is where pen and paper (or printer ) come into it. Time to write a letter.

In this letter you need to specifically state that they have failed to abide by the legislation, (and have breached their contract with you ?? did you pay them to do this).

You want to absolve yourself as much as possible. Put the blame on them, that way if the tenant comes after you, you can come after the LA. (which you can do)

3rd: Whats the tenant like, good & reasonable?

G_M

I agree with much that guest says above:

1) data protection is irrelevant. You employ the agents as.... an agent. Any information they hold, they hold on your behalf, so of course you are entitled to see it!

2) They have (almost certainly) breached their contract with you (read your contract)

3) they have lied to you

4) they have acted unprofessionally.

SACK THEM!

Read:

Letting Agents (Tips for selecting, and tips for sacking them)

Do everything in writing (not text, phone, email: letter).

bobbydavro

Hi Guest 101 many thanks for taking the time to reply and sorry for the delay in getting back to you.

To answer your questions:

1 The letting agent is not managing the property for me. The letting agent took 5% of the first 12 months rent which worked out at £774 for the agent finding the tenant for me.
The contract is for 12 months. In addition to this the letting agents also charged my tenant around £500 (??)for credit checks etc, although Im not sure of the exact figure.

2. All the information the letting agent has on the tenants was never passed on to me.

I have already written and sent a letter, in fact two letters I have stated that they have not abided by legislation and also they have breached the contract (the lying). However the letting agents are refusing to cooperate.

The letting agent is using the data protection act ('98?) as an excuse to not answer my questions.

At the end of the day the tenants deposit is still sitting in the letting agents account. I have asked the letting agents in my letter dated 19th of September to:
a) return the tenants deposit to me,
or
b) to return the tenants deposit to the tenant, either of these within seven days..

3. The tenants are good and reasonable and I am in full communication with them.

What I would like to ask you Guest101,

a) is seeing as the letting agents have breached the contract, am I entitled to claim back my £774 that they have pocketed plus expenses incurred having to deal with the letting agents unprofessional conduct. i.e. lying, pretending my deposits scheme was lodged when it was not. I received a letter from the letting agent on the 15th of June(beginning of the tenancy claiming it was lodged with M.D scheme, know I know it wasn't, it was only lodged online on the 17th of Septmeber)

b) I would imagine the letting agent has also breached their contract with the tenant, therefore, is the tenant also able to claim back the money paid to W&M letting agents?

I look forwards to your response and thank you in advance for all your kind help and assistance

best regards

bobbydavro

G_M wrote: »

I agree with much that guest says above:

1) data protection is irrelevant. You employ the agents as.... an agent. Any information they hold, they hold on your behalf, so of course you are entitled to see it!

2) They have (almost certainly) breached their contract with you (read your contract)

3) they have lied to you

4) they have acted unprofessionally.

SACK THEM!

Read:

Letting Agents (Tips for selecting, and tips for sacking them)

Do everything in writing (not text, phone, email: letter).

Dear G_M,

many thanks for your response, very much appreciated.

I agree with all your numbered points (1-4) and to let you know I am in the process of writing my 3rd letter to M&W to let them know I am SACKING them!

I would to ask you a question, and throw it out to the public also:

If I write a bad review on M&W lettings website, obviously keeping it factual and concise with the Truth should I have any worries about a libel lawsuit?

Many thanks and best wishes

Guest101

bobbydavro wrote: »

Hi Guest 101 many thanks for taking the time to reply and sorry for the delay in getting back to you.

To answer your questions:

1 The letting agent is not managing the property for me. The letting agent took 5% of the first 12 months rent which worked out at £774 for the agent finding the tenant for me.
The contract is for 12 months. In addition to this the letting agents also charged my tenant around £500 (??)for credit checks etc, although Im not sure of the exact figure. - Just to confirm, in your initial contract with the agent, as part of the service, they would protect your deposit with MD? Its quite important to get the exact wording. For example: In your contract, is there a clause with something along the lines of: We (the LA) will protect the deposit paid my the tenant on behalf of you (the LL) ?

2. All the information the letting agent has on the tenants was never passed on to me. - Again what does the contract say abou this? They should pass on the information to you to make the decision, but it's important to know if they have breached any clause of their contract?

I have already written and sent a letter, in fact two letters I have stated that they have not abided by legislation and also they have breached the contract (the lying). However the letting agents are refusing to cooperate. - You should consider sending a letter before action. Would be interesting to know if you could bring a case. What happened when they told you they had a tenant for you? The tenant certainly has a case, and you should be able to protect your interests, if the LA has failed in the duty.

The letting agent is using the data protection act ('98?) as an excuse to not answer my questions. - Im so confused, there is nothing in the legislation in relation tho this. |You have paid for this information, and the tenant has agreed to share this information as part of their application. You could try a letter before action on the basis that you have paid for a service which they have not provided.

At the end of the day the tenants deposit is still sitting in the letting agents account. I have asked the letting agents in my letter dated 19th of September to:
a) return the tenants deposit to me,
or
b) to return the tenants deposit to the tenant, either of these within seven days..
- i take it they havent replied as yet, so its 3 days in, so you never know.
3. The tenants are good and reasonable and I am in full communication with them. - good, keep it amicable. Certainly one thing they should definitely do, is return the deposit to the tenant, no matter what, it is your choice to return the deposit at any point.

What I would like to ask you Guest101,

a) is seeing as the letting agents have breached the contract, am I entitled to claim back my £774 that they have pocketed plus expenses incurred having to deal with the letting agents unprofessional conduct. i.e. lying, pretending my deposits scheme was lodged when it was not. I received a letter from the letting agent on the 15th of June(beginning of the tenancy claiming it was lodged with M.D scheme, know I know it wasn't, it was only lodged online on the 17th of Septmeber) - i think you have a claim, absolutely. but need more information as to the exact wording of the clauses in the contract. It's interesting you have a claim against services not rendered, or a claim of loss due to negligence on their part. Basically at the moment, you have suffered no loss. The deposit could well be returned in full to the tenant, and the tenant may not sue. In which case, a court may rule a partial refund, is due (thy still did the bigger job of actually finding a tenant, so i doubt you'd get the bulk of the money back). However, if the tenant does decide to sue you, they would win - this is because the responsibilty lies with you. At this point, you could begin a claim against the agency as having suffered a loss, due to breach of contract, where you should in turn win.

b) I would imagine the letting agent has also breached their contract with the tenant, therefore, is the tenant also able to claim back the money paid to W&M letting agents? - unlikely, tenants do not in general pay (though its not unheard of) to have a deposit protected, and if they do, this fee is usually around £30-40. What they MAY have a claim against is the possibility that the LA didnt carry out credit checks etc in relation to the fee the tenant paid. This may be why they are not keen to divulge the information you have asked for. The tenant could make a SAR (Subject access request) to the letting agent, with an admin fee of upto £10 (should check with the agent first, it should not be more than £10, but maybe, unlikely, less). This means the LA must provide all information held by them on the tenant. This will include records of all searches, references etc etc. If the agent isnt able to provide these, then it is likely they didnt make any checks, and just pocketed the money.

I look forwards to your response and thank you in advance for all your kind help and assistance

best regards

Hope the above helps, with a bit more info I will see what we can do about this

Guest101

bobbydavro wrote: »

Dear G_M,

many thanks for your response, very much appreciated.

I agree with all your numbered points (1-4) and to let you know I am in the process of writing my 3rd letter to M&W to let them know I am SACKING them!

I would to ask you a question, and throw it out to the public also:

If I write a bad review on M&W lettings website, obviously keeping it factual and concise with the Truth should I have any worries about a libel lawsuit?

Many thanks and best wishes

It has been famously said, the truth can never be Libel. Make sure you do not make any 'leading comments' and stick to the truth

anselld

bobbydavro wrote: »

I am in the process of writing my 3rd letter to M&W to let them know I am SACKING them!

I suspect you are not, in fact, sacking them since you did not retain them beyond the initial tenant find to manage the property. Hence there is no ongoing contract from which to sack them!

Equally, however, as they are not managing the property they have no right to retain the deposit on your behalf, it should have been given to you to lodge with a protection scheme.

As for breach of contract you would need to prove breach against the specific contract terms and you would need to show a specific financial loss. You cannot simply reclaim the whole of the agreed fees since that part of the contract was performed.

Naf

Personally, I'd discuss with the tenant about having their deposit returned, then paid to you directly and you protect it correctly. Assuming the tenant is happy with this, write to the LA requesting it be returned to them within 14 days. If they do it then at least you're protected from repercussions; if not then you both have cause to commence proceedings against them.

anselld

Naf wrote: »

Personally, I'd discuss with the tenant about having their deposit returned, then paid to you directly and you protect it correctly. Assuming the tenant is happy with this, write to the LA requesting it be returned to them within 14 days. If they do it then at least you're protected from repercussions; if not then you both have cause to commence proceedings against them.

Unfortunately late protection cannot be rectified by returning the deposit. T could still sue for up to 3x deposit. Much less likely admittedly, but legally possible.

Naf

anselld wrote: »

Unfortunately late protection cannot be rectified by returning the deposit. T could still sue for up to 3x deposit. Much less likely admittedly, but legally possible.

Which OP can still chase LA for. At least this way they've made steps to rectify the problem when they discovered it, making the court less likely to award as much against.