Letting Agent claiming back 8 months rent already paid to landlord

jjlandlord

Perhaps the previous posts were not clear:

If your agent receives a payment on your behalf that is later recalled, you should in turn pay him the money back.

Regarding HB fraud, councils handle this, not banks.

dln

Firstly, a massive 'thank you' to all of you that tried to help me to see through the fog of the email I received. Your comments have been much appreciated and have helped me to fight this problem today.

Today I received the following email from the letting agent:


"I'm afraid it appears letters to both tenants have had no effect to date.

I will give it another few days

Please could you start thinking of how you would like to deal with this

Statutory demands are £100+vat and are personally served at a further cost of £100. That gives the tenants 21 days to pay or they go to banruptcy court at a further cost of £700 which you would get back if they paid

It would also mean you having to repay us the rent already paid to you over the months"


After several emails back and forth the waters have cleared somewhat.

I now know that the tenant paid by direct debit (not standing order) that and that he was the one to recall the £3,800.

The reason he gave to the bank was: "No advance notice received by payer."

The letting agent has sent me images of direct debit notices that were sent to the tenant and also the message:

"The most important letter is the ‘Notification of a New Direct Debit Collection’

This letter was originally produced from the DD upload on to Paycentre on the 30.08.2014."

I understand this to mean that the letting agent did indeed send the notice/s to him but that he has told the bank that he did not receive them.

Which brings me round, once again, to my liability in this sorry affair. Am I, in any way, responsible for the direct debit notices between the tenant, the bank (don't even know which one it is) and my letting agent?

My reply to the letting agent tomorrow will be along the lines of:

Dear ????,

Thank you for your prompt replies yesterday containing all the information that I requested.

Firstly, I had no part to play in the direct debit notices. They were between the tenant, the bank and yourselves. Logically, therefore, because of my complete lack of involvement in that part of the letting process, it would seem to me, that I am not liable with respect to the return of any monies received.

Secondly, it appears that the tenant has some knowledge of the direct debit system and is savvy enough to use it for his own dishonest ends. I think it is safe to assume he has done a similar thing in the past and in all probability will continue to do so in the future. Knowing the weaknesses of the direct debit system (as against that of using a standing order) why do you use it rather than the 'safer' standing orders?

Yours sincerely,

I would be grateful (once again) for your comments - particularly my intended reply to the letting agent.

kinger101

Can you find out whether the LA has made any attempt at a counterclaim with the bank? It was my understanding the advance notice is not required where there is a fixed payment schedule (same amount, same day of month). The bank may not be able to do anything, but at the very least, the LA needs to see what is possible.

This also needs to be reported to the police. Fraud is a criminal offence. It might not help you get your money back, but maybe one of them will become someone's !!!!! in prison and you'll get a bit of karma.

silvercar

"I'm afraid it appears letters to both tenants have had no effect to date.

I will give it another few days

Please could you start thinking of how you would like to deal with this

Statutory demands are £100+vat and are personally served at a further cost of £100. That gives the tenants 21 days to pay or they go to banruptcy court at a further cost of £700 which you would get back if they paid

It would also mean you having to repay us the rent already paid to you over the months"

very simplistic statements there and not entirely true.

After 21 days and assuming non payment, you could then choose to make the tenants bankrupt. If they have no money then there is little financial value in doing so. If you do make them bankrupt, you join a list of other creditors and you all get a proportion of your debts back, depending what assets the bankrupt has.

The last sentence is the most interesting. I'm trying to work out what it means. Obviously if the tenants paid over the money or the bankrupt court obtained money from assets, you need to reimburse the money recalled to the letting agent. But I'm unsure if the LA is intimating that they expect you to pay the rent back to them for them to act further. In which case you could turn to the LA and say the money has been taken back from them, so they need to deal with it as they see fit.

FBaby

I think you are facing the reality of dealing with LA. They take your money, do the minimum that they need to do as part of your contract with them, but bear little responsibility when things go wrong. You can be assure that to your comments about DD, they will respond that it was your responsibility to check their practice and request another method be used if you were not happy with it, hence....it is your fault...

I think you need to read the terms of the agreement of your contract with the LA carefully and take it from there. I wouldn't pay, but you might need to be prepared for them to take you to court if they think they can legally wash themselves of the responsibility.

For that purpose, I would ask to know the details of the bank, and deal with them myself to understand how the bank agreed to it. Maybe the fault will fall on the bank (although very unlikely).

dln

There is a part of the contract which reads:

". . . in such circumstances when a Tenant's cheque or direct debit is not honoured by the Tenant's bank, the landlord must refund to the agent the amount paid to him and seek compensation direct from the tenant."

Is this this the clause where they get me?

or can I argue that the DD was honoured initially and the clause does not state anything about the DD being recalled after it is initially accepted?

[Deleted User]

I'd also be looking into what the LA are doing to defend the tenant's claim. Do they have proof of postage of the direct debit notices? Surely that's their responsibility like it is when they issue a S21 and the tenant argues they didn't receive sufficient notice or the S21 at all?

DandelionPatrol

dln wrote: »

There is a part of the contract which reads:

". . . in such circumstances when a Tenant's cheque or direct debit is not honoured by the Tenant's bank, the landlord must refund to the agent the amount paid to him and seek compensation direct from the tenant."

Is this this the clause where they get me?

or can I argue that the DD was honoured initially and the clause does not state anything about the DD being recalled after it is initially accepted?

I would think that the DDs have been honoured. And I think I would be telling the LA that they should fight the claim with the bank on the grounds that the DDs have been correctly notified - and that if the claim is lost on these grounds, I would be suing the LA for negligence. They need to fight their bank as though it was their money.

But keep things sweet for the moment ...

jjlandlord

dln wrote: »

There is a part of the contract which reads:

". . . in such circumstances when a Tenant's cheque or direct debit is not honoured by the Tenant's bank, the landlord must refund to the agent the amount paid to him and seek compensation direct from the tenant."

Is this this the clause where they get me?

or can I argue that the DD was honoured initially and the clause does not state anything about the DD being recalled after it is initially accepted?

I'll risk repeating yet another time, and for the last time: You are clutching at straws and going after a red herring.

It is quite normal that you should refund your agent in such a case.
What's more, they took the precaution to have it clearly written in their T&Cs.

All those who claim otherwise clearly have no experience with payment processors, etc.

silvercar

jjlandlord wrote: »

I'll risk repeating yet another time, and for the last time: You are clutching at straws and going after a red herring.

It is quite normal that you should refund your agent in such a case.
What's more, they took the precaution to have it clearly written in their T&Cs.

All those who claim otherwise clearly have no experience with payment processors, etc.

Possession is nine tenths of the law.

I wouldn't be in a rush to refund LA initially. I would now want to see some clear effort from LA in getting the bank to return retrieved moneys, after all it was their account that it was retrieved from.

What would LA do, if the landlord had already spent the money and was broke? How hard would they then work to get the bank to act or to pursue the tenant?