Letting Agent Deposited Incorrect Deposit Amount

Markyginge

Hi. Bit of a new one for me. I'm the landlord in this. Apologies for a long explanation.

On an AST the deposit is noted as £1200. The agent is responsible under my agreemeet with them to manage and protect the deposit.
Move on to the end of the tenancy, the tenant has rent arrears and agrees that after fees and my costs, the balance can be paid to me to start reducing the arrears now the AST has ended.
From the original deposit the balance is £500 and he agrees to pay this towards his rent arrears.
However, the agent now tell be that they only collected and protected £800 deposit from the tenant (this has been confirmed by the deposit scheme company) and not the £1200.
So from the £500 I should be getting, they are only processing £100 as a payment to me towards rent arrears.
I have told them that as the error in not collecting the full deposit is theirs, they must pay me the £500 as the AST states a deposit of £1200 was agreed and the missing £400 is a dispute that they must take up with the tenant or write off the loss.
If not I have to prove non payment by the tenant and add the missing £400 to the arrears schedule for the tenant, which may go to small claim.
Any advice please.

silvercar

You propose a deduction based on what rent arrears and other items. If the tenant disputes you use the deposit arbitration service.

If you can show (bank statements etc) that you only received £800 then go with that. Admin error caused the wrong amount to be written. If tenant disputes this they risk being asked for proof.

Markyginge

Thanks for the reply. To clarify the deductions made are not for any unpaid rent but were to cover repairs, cleaning etc, and fees for check out. He has agreed to this. There is not a dispute with the tenant with regard these charges so arbitration is not required
It is only the balance after these costs are deducted that will be paid to start reducing his arrears. As the agent didn't collect and protect the full deposit there's a £400 shortfall in what I should receive. Hope that helps.

G_M

Is there a dispute with the tenant over the amount of deposit they paid (ignoribg what the agent protected)?

Has the tenant got evidence of paying £1200 eg a receipt?
Has the agent got evidence of what they collected?

In the absence of evidence to the contrary, the tenant cold well claim he paid £1200 simply based on what the contract says.

Furthermore, in that case, he could sue you (and possibly your agent) for failing to protect the full deposit.....

Markyginge

Hi.
The agent say they have evidence from accounts/statements that they have only collected the £800 and confirm that they didn't collect the full £1200.
My argument though isn't with the tenant at all. As you say the contract states £1200 and unless the agent can prove otherwise he is quite within his rights to make them prove underpayment. I would support him in this.
My question and agrument is with the agents. Are they lliable to pay to me based on the balance based on the contracted deposit rather than the protected deposit irrespective of what they actually collected. As my agrument with them is that the contract says £1200, the same as the tenant has with them and the value in the contract should be the starting point in all calculations, irrespective of what they actually collected. The £400 shortfall is the agents problem and they must take as a loss and not penalise either me or the tenant. Hope this helps.

Markyginge

G_M, Sorry repeated myself a bit there.

anselld

Markyginge wrote: »

Hi.
The agent say they have evidence from accounts/statements that they have only collected the £800 and confirm that they didn't collect the full £1200.
My argument though isn't with the tenant at all. As you say the contract states £1200 and unless the agent can prove otherwise he is quite within his rights to make them prove underpayment. I would support him in this.
My question and agrument is with the agents. Are they lliable to pay to me based on the balance based on the contracted deposit rather than the protected deposit irrespective of what they actually collected. As my agrument with them is that the contract says £1200, the same as the tenant has with them and the value in the contract should be the starting point in all calculations, irrespective of what they actually collected. The £400 shortfall is the agents problem and they must take as a loss and not penalise either me or the tenant. Hope this helps.

You don't seem to be to getting that the Agent is acting as ... *your* agent.

If the evidence supports £800 and the T agrees then you that is all there is. The remaining debt must be collected from the T. You may decide to sack your agent based on their mistake but the deposit is still your responsibility.

If you are accusing the Agent of trousering £400 of the deposit then yes you have a claim against the Agent but the T still has a claim against you.

silvercar

I'm not sure if your argument is that the agent should have taken the full amount and therefore there would be more money deposited to take to cover arrears, or if you are worried the tenant will try to reclaim more money than they paid.

FBaby

You can try to sue the agent if you can evidence that they broke the term of your contract, ie. that they will protected X% of the full rental amount in all circumstances and take financial responsibility if this doesn't happen (I'd be amazed if there is such a clause!) but it sounds like you have a much better chance to get money through out of the person who owes it, ie. your tenant.

thesaint

I don't understand exactly what happened, as it seems you are gearing your query one way.

It does appear that your tenant may owe you money, and that you want it from the agent because you don't like them.

Markyginge

Thanks for replies. Agent was at fault, they had collected the full deposit from the tenant, but managed data and reported info incorrectly.