£thsnds rent owed and no protected deposit

maxhale333

Hi,

It's a bit of a complicated issue, I haven't written any real names or anything, I am up for hearing any of your thoughts or advice on it.

We are 4 sharers, in a joint contract. We started the tenancy by going through an independent estate agent for referencing and payment of the deposit/first months rent. Once we moved in I met the landlord and they told us to pay them direct as a private landlord for our 12 month contract - they weren't happy with the estate agent's service.

A couple of months later one my housemates mistakenly paid the estate agent the rent, this carried on every month for 2 years, bank statements prove this. This totals to around £8000 Neither the estate agent or the landlord mentioned they were receiving or missing the rent respectively so as tenants we all went unaware of the issue until we went to move out.

We tried to move into another house last August at the end of our term to be told we wouldn't receive a Landlord reference till we paid back what we owe, then it all came to the surface. As joint tenants we are all liable for it although the housemate who made the mistake has agreed to take on the responsibility between ourselves.

Our landlord has been letting us stay in the property on a month by month basis until the issue is sorted out and she is paid back.

The housemate who made the mistake has tried to contact the estate agent numerous times even turning up at their house, everything is being ignored and evaded. Court looks like the only option to recover the money. The agent is currently on the brink of bankruptcy according to companies house.

The housemate has also been trying to contact our landlord for responses and clarification on the issue for about 4 months with no response from our landlord at all. We all feel like our landlord thinks "as long as I have them in the house paying the rent" they are happy to ignore it and have put the responsibility on us as housemates to recover the money, they don't believe we can leave the house as we wont get a reference.

We are all moving out of the property and have given our 28 days notice. No problems with not having a reference. After 2 weeks of giving our notice they responded (the first response in months) to ask for rent due that they believe is on top of the £8000. Basically they have not gone through their accounts properly and missed various payments leaving us having to screenshot bank statements to prove it. This is the second time this has happened.

A letter has been sent to us from them basically reiterating the situation and the obligations involved (example: "you are all still liable for this" "this months rent is still due" "this is the situation") Essentially this looks like a letter they may rely on in court.

But now the plot thickens...

Our deposit has not been protected for 3 years (it was in the first year). I have had this information confirmed by the service protecting the deposit and they have confirmed we can take legal action on that.

We also have not once had a gas or electrical safety inspection since moving in 4 years ago.

The Landlord is also asking for my forwarding address which I absolutely do not want to give them - I know they will hire a private investigator if needed as they have told us to do that with the rouge estate agent, even asking us to pay them £150 and they will hire their usual investigator. We actually know where the estate agents business address is anyway it doesn't take a genius...

What do you guys think? This is probably likely to go to court, we are hoping the landlord rightly looks so incompetent the judge would take an amount of pity. After all what landlord doesn't bring up the fact that 1/4 of the rent has been missing every month for 2 years!

Do we take them to court over the deposit and potentially claim back 3x the amount. Then deal with the £8000 separately?
Is it down to us to take the estate agent to court or is this our landlord's responsibility?

Do we use the fact they have acted unlawfully by not protecting the deposit to regain our deposit back regardless of the fact rent is owed?

Thanks for finally getting through all that!

DaftyDuck

I am no legal beagle... I pay a solicitor to do that. But, until more informed minds comment:

....they told us to pay them direct as a private landlord for our 12 month contract - they weren't happy with the estate agent's service

Fine. But if payment was made as per the original contract - which was apparently never superseded - that was paid correctly. The LL has never complained about being paid directly either, and I guess that money is traceable. It looks like all rent was paid, either to the LL direct, or the agent, and the agent is (not was, if you were never given a replacement contract) the LL's ... agent!

My guess is the LL is in dispute with the agency, over fees he owes them. That should not involve you. It will legally not involve you.

If both sets of payment are evidenced, you should have no problem with Courts as far as I can see.

The non-protection of deposit is an entirely separate issue..... Well, go for that in Court... speaking as a LL too!

I'm often wrong, though! Better minds will advise.

anselld

The three issues are separate.

The L can claim against all of you (assuming it is a joint contract) for whatever amount they think is owed. Onus on them to prove it. You would need to defend with bank statements etc.

The person who paid the EA can claim against the EA for the erroneous payments to be returned.

You can jointly sue the L for up to 3x penalty plus the return of your deposit less any damages.

The three issues might be heard by the Court at the same time, but essentially they are separate, eg the fact of non protection is irrelevant to the rent owed, etc.

Rosemary7391

Why do you not want to give the LL your new address? I wouldn't add unneeded complication and aggravation to this situation! Even if you evade the LL now it could well come to bite you in a few years time... just deal with it now while everyone has their paperwork and can recall what is going on.

G_M

There is culpability all round!

1) Rent.
* You (jointly) owe the rent to your landlord.
* paying it to a 3rd party who was not entitled to it was your (joint) mistake
* you can reclaim it from the agent, via the courts if neccessary
* your LL can claim it from you (jointly/separately), via the courts if neccessary

2 Deposit
* have you checked all the schemes? The LL my have moved it to a different scheme. Check.
* if it is unprotected, you can claim the penalty of up to 3 times the deposit

3) gas
* request (in writing) a gas certificate
* if not forthcoming, report to HSE

4) Electrics
* no requirement for a certificate (in Eng) provided the electrics are safe

5) Tenancy
* you have a valid periodic tenancy
* the LL can evict either via a S21 Notice (no fault - 2months) or a S8 (arrears - 14 days)
* but if he's happy and you are paying rent now he may not want to
* you can serve notice - notice period depends if you have a CPT or a SPT

See links for more

* Deposits: payment, protection and return

* Ending/renewing an AST: what happens when a fixed term ends? How can a LL or tenant end a tenancy? What is a periodic tenancy?


* HSE: Tenants FAQs and how to report


* HSE (Gas Safety Certificate rules)

Sibz

G_M wrote: »

There is culpability all round!

1) Rent.
* You (jointly) owe the rent to your landlord.
* paying it to a 3rd party who was not entitled to it was your (joint) mistake Surely for this statement you would need to see (or at least clarify) the official tennancy agreement document. If that said to pay the Agent, and the LL has just said during
a conversation to pay her and not made it official I'd say the mistake was hers as payment has been made in the official manner (at least by 1 of the 4).
* you can reclaim it from the agent, via the courts if neccessary or the LL can - it's her agent
* your LL can claim it from you (jointly/separately), via the courts if neccessary For the courts to decide, I seriously doubt a tennant would be forced to pay twice because they got caught up in a dispute between an unprofessional LL and an unprofessional Agent.

2 Deposit
* have you checked all the schemes? The LL my have moved it to a different scheme. Check.
* if it is unprotected, you can claim the penalty of up to 3 times the deposit

3) gas
* request (in writing) a gas certificate
* if not forthcoming, report to HSE

4) Electrics
* no requirement for a certificate (in Eng) provided the electrics are safe

5) Tenancy
* you have a valid periodic tenancy
* the LL can evict either via a S21 Notice (no fault - 2months) or a S8 (arrears - 14 days)
* but if he's happy and you are paying rent now he may not want to
* you can serve notice - notice period depends if you have a CPT or a SPT

See links for more

* Deposits: payment, protection and return

* Ending/renewing an AST: what happens when a fixed term ends? How can a LL or tenant end a tenancy? What is a periodic tenancy?


* HSE: Tenants FAQs and how to report


* HSE (Gas Safety Certificate rules)

OP - What exactly is the situation between the LL and the EA? I'd say this is worth looking into as neither brought up the shortfall in payments during the tennancy (going by what you have said). This would mean the LL failed to notice a 25% shortfall in payment month on month and the EA a 75% shortfall. That all sounds a bit fishy... I'd be concerned that it's some scam they try with students regularly maybe...

Xbigman

Just a thought. Was the EA paid by DD? If they were you can call all the DD payments back via the DD guarantee, then pay the landlord.




Darren

saajan_12

Separate issues:
* Tenants jointly owe LL rent arrears. Paying a 3rd party against the LL's instructions is not a defence.
* LL owes deposit less deductions plus a penalty 1-3x deposit (whatever court decides)
* Agent owes the return of monies incorrectly received: the housemate that paid this can claim through bank or court.
* LL should have a gas cert: no monetary implication, but request one for your safety or report the LL.

maxhale333 wrote: »

Hi,

It's a bit of a complicated issue, I haven't written any real names or anything, I am up for hearing any of your thoughts or advice on it.

We are 4 sharers, in a joint contract. We started the tenancy by going through an independent estate agent for referencing and payment of the deposit/first months rent. Once we moved in I met the landlord and they told us to pay them direct as a private landlord for our 12 month contract - they weren't happy with the estate agent's service. - great, so start paying the LL. The first payment is often off cycle eg paid much before the start of the month, so not really surprising its handled differently.

A couple of months later one my housemates mistakenly paid the estate agent the rent, - ah no, why did they change after paying the LL presumably for the first 'couple of months'! this carried on every month for 2 years, bank statements prove this. This totals to around £8000 - expensive mistake, but the proof is irrelevant: legally the housemate has failed to pay rent to the LL as instructed. Neither the estate agent or the landlord mentioned they were receiving or missing the rent respectively so as tenants we all went unaware of the issue until we went to move out. - Its not up to the LL to request rent or notice its missing. Its the tenants' joint responsibility to ensure its paid as instructed.

We tried to move into another house last August at the end of our term to be told we wouldn't receive a Landlord reference till we paid back what we owe, then it all came to the surface. As joint tenants we are all liable for it although the housemate who made the mistake has agreed to take on the responsibility between ourselves. - fair enough. Note the LL can sue any / all of you. The housemate can just to pay it all to the LL or whoever ends up paying can claim off the housemate based on the agreement between you to each pay your share.

Our landlord has been letting us stay in the property on a month by month basis until the issue is sorted out and she is paid back. - under a periodic tenancy, that's fine.

The housemate who made the mistake has tried to contact the estate agent numerous times even turning up at their house, everything is being ignored and evaded. Court looks like the only option to recover the money. The agent is currently on the brink of bankruptcy according to companies house. - Turning up at someones house sound excessive and I'd be careful of harrassment. I'd get a claim in via court and/or the bank asap.

The housemate has also been trying to contact our landlord for responses and clarification on the issue for about 4 months with no response from our landlord at all. - what clarification is needed? Housemate should get on and start paying the LL the rent arrears (or as soon as they have the money) We all feel like our landlord thinks "as long as I have them in the house paying the rent" they are happy to ignore it and have put the responsibility on us as housemates to recover the money, they don't believe we can leave the house as we wont get a reference. - it is your responsibility to recover from the agent. The notice / ongoing rent is a separate issue.

We are all moving out of the property and have given our 28 days notice. - are you sure its 28 days? On a periodic tenancy either your latest agreement specifies the notice, or its an SPT and you ahve to give 1 tenancy period notice (ie a full month > 28 days and expiring in line with period dates) No problems with not having a reference. After 2 weeks of giving our notice they responded (the first response in months) to ask for rent due that they believe is on top of the £8000. Basically they have not gone through their accounts properly and missed various payments leaving us having to screenshot bank statements to prove it. This is the second time this has happened. - okay, so show your proof and move on.

A letter has been sent to us from them basically reiterating the situation and the obligations involved (example: "you are all still liable for this" "this months rent is still due" "this is the situation") Essentially this looks like a letter they may rely on in court. - The letter may help, but the history of insufficient payments is plenty for them to rely on in court.

But now the plot thickens...

Our deposit has not been protected for 3 years (it was in the first year). I have had this information confirmed by the service protecting the deposit and they have confirmed we can take legal action on that. - Correct, you can claim 1-3x deposit on top of the actual deposit return, less deductions. Since it was initially protected and if you received the certs, PI etc then I suspect any penalty will be to the lower end eg 1x deposit.

We also have not once had a gas or electrical safety inspection since moving in 4 years ago. - no gas cert is bad.. request one or get someone in yourself for your own safety. You can report the LL for this. Electrical safety inspections aren't required.

The Landlord is also asking for my forwarding address which I absolutely do not want to give them - I know they will hire a private investigator if needed as they have told us to do that with the rouge estate agent, even asking us to pay them £150 and they will hire their usual investigator. We actually know where the estate agents business address is anyway it doesn't take a genius...

What do you guys think? This is probably likely to go to court, we are hoping the landlord rightly looks so incompetent the judge would take an amount of pity. After all what landlord doesn't bring up the fact that 1/4 of the rent has been missing every month for 2 years! - competence isn't really relevant.. similarly what tenant randomly changes bank details they're paying rent to without checking? However the debt is clear: instruction from LL to pay rent to Account XYZ. This was not paid => Tenants owe £8000 in rent. The agent is irrelevant.

Do we take them to court over the deposit and potentially claim back 3x the amount. Then deal with the £8000 separately? - By deal with the £8000, you mean just (start to) pay it to the LL yes? And yes, take the LL to court or negotiate an amount to reduce the arrears by to avoid court.
Is it down to us to take the estate agent to court or is this our landlord's responsibility? - Housemate's responsibility, as they paid a stranger money.

Do we use the fact they have acted unlawfully by not protecting the deposit to regain our deposit back regardless of the fact rent is owed? - separate issues, you still owe the rent. LL still owes whatever penalty the court decides. The court or the two parties can agree to net the two and agree say that Tenants pay LL £8000 - 2x deposit to save everyone from court.

Thanks for finally getting through all that!

Sibz wrote: »

Originally Posted by G_M View Post
There is culpability all round!

1) Rent.
* You (jointly) owe the rent to your landlord.
* paying it to a 3rd party who was not entitled to it was your (joint) mistake Surely for this statement you would need to see (or at least clarify) the official tennancy agreement document. If that said to pay the Agent, and the LL has just said during a conversation to pay her and not made it official I'd say the mistake was hers as payment has been made in the official manner (at least by 1 of the 4).
No, the 'official tenancy agreement document' can be superseeded by the LL's instructions. At that point, the original doc is irrelevant on any points that conflict with the amendment.
* you can reclaim it from the agent, via the courts if neccessary or the LL can - it's her agent - No, they ceased to be LL's agent and became an unrelated 3rd party at the point LL instructed tenants to pay and deal directly with her. The LL has no claim against the agent, as LL did not make the payments to agent nor instruct the agent to collect and pass on rent. Only the tenant who paid the agent erroneously can reclaim the money from them.
* your LL can claim it from you (jointly/separately), via the courts if neccessary For the courts to decide, I seriously doubt a tennant would be forced to pay twice because they got caught up in a dispute between an unprofessional LL and an unprofessional Agent. - on what basis do you think there's a dispute between LL and agent? Not wanting their service doesn't imply a dispute. The tenant wouldn't be paying the LL twice, the fact that they paid an unrelated 3rd party some money is irrelevant.

Sibz

Originally Posted by G_M View Post
There is culpability all round!

1) Rent.
* You (jointly) owe the rent to your landlord.
* paying it to a 3rd party who was not entitled to it was your (joint) mistake Surely for this statement you would need to see (or at least clarify) the official tennancy agreement document. If that said to pay the Agent, and the LL has just said during a conversation to pay her and not made it official I'd say the mistake was hers as payment has been made in the official manner (at least by 1 of the 4).
No, the 'official tenancy agreement document' can be superseeded by the LL's instructions. At that point, the original doc is irrelevant on any points that conflict with the amendment. Assuming that any change was carried out formally and in writing. Otherwise could be a case to prove if the 4th tennant was actually informed properly. I think this needs the OP to clarify how they were notified by LL
* you can reclaim it from the agent, via the courts if neccessary or the LL can - it's her agent - No, they ceased to be LL's agent and became an unrelated 3rd party at the point LL instructed tenants to pay and deal directly with her. The LL has no claim against the agent, as LL did not make the payments to agent nor instruct the agent to collect and pass on rent. Only the tenant who paid the agent erroneously can reclaim the money from them. Again - was this done officially? The initial legal agreement was for payment to go to Agent - was this officially changed?
* your LL can claim it from you (jointly/separately), via the courts if neccessary For the courts to decide, I seriously doubt a tennant would be forced to pay twice because they got caught up in a dispute between an unprofessional LL and an unprofessional Agent. - on what basis do you think there's a dispute between LL and agent? Not wanting their service doesn't imply a dispute. The tenant wouldn't be paying the LL twice, the fact that they paid an unrelated 3rd party some money is irrelevant. - Again you are assuming that changes were made formally and a new agreement introduced in writing and signed for etc... The OP has given no indication that this is the case
Originally posted by Sibz
”

saajan_12

Sibz wrote: »

Assuming that any change was carried out formally and in writing. Otherwise could be a case to prove if the 4th tennant was actually informed properly. I think this needs the OP to clarify how they were notified by LL
..
Again - was this done officially? The initial legal agreement was for payment to go to Agent - was this officially changed?
..
Again you are assuming that changes were made formally and a new agreement introduced in writing and signed for etc... The OP has given no indication that this is the case

No, I disagree, it is NOT necessary to be 'officially' signed for.
1) The change to bank details is simply an administrative thing, so the Tenant simply has to be notified, they can't refuse. Similar say to if the property was sold and the name of the LL changed.. they have to be notified, but the Tenant can't refuse to pay rent to the new LL.

2) Action can be evidence of a contract, eg if they verbally agree to a rent increase and start paying it, then that's of the change. OP says the housemate only accidentally paid the agent after a couple of months, suggesting they were initially ALL paying the LL directly.. So clearly the Tenant did know about the instructions to pay the LL.

3) There's no indication of what the original AST contract stated.. it could have said pay the LL all along, jsut the initial deposit and first month rent were collected prior to the start of the month, by the agent.

Comms69

maxhale333 wrote: »

Hi,

It's a bit of a complicated issue, I haven't written any real names or anything, I am up for hearing any of your thoughts or advice on it.

We are 4 sharers, in a joint contract. We started the tenancy by going through an independent estate agent for referencing and payment of the deposit/first months rent. Once we moved in I met the landlord and they told us to pay them direct as a private landlord for our 12 month contract - they weren't happy with the estate agent's service.

A couple of months later one my housemates mistakenly paid the estate agent the rent, this carried on every month for 2 years, bank statements prove this. This totals to around £8000 Neither the estate agent or the landlord mentioned they were receiving or missing the rent respectively so as tenants we all went unaware of the issue until we went to move out. - The total rent is £16,000 per year?

We tried to move into another house last August at the end of our term to be told we wouldn't receive a Landlord reference till we paid back what we owe, then it all came to the surface. As joint tenants we are all liable for it although the housemate who made the mistake has agreed to take on the responsibility between ourselves. - Fair enough, upto him or her

Our landlord has been letting us stay in the property on a month by month basis until the issue is sorted out and she is paid back. - Irrelevant. She would need to evict you through court if she wanted you out. You are entitled by law to live there indefinitely; unless a court orders otherwise

The housemate who made the mistake has tried to contact the estate agent numerous times even turning up at their house - what house, what about the office?! , everything is being ignored and evaded. Court looks like the only option to recover the money. The agent is currently on the brink of bankruptcy according to companies house. - The police should be contacted, this would be an offence under the theft act

The housemate has also been trying to contact our landlord for responses and clarification on the issue for about 4 months with no response from our landlord at all. -in writing? We all feel like our landlord thinks "as long as I have them in the house paying the rent" they are happy to ignore it and have put the responsibility on us as housemates to recover the money, they don't believe we can leave the house as we wont get a reference. - well you can still try. Many landlord ignore references as there is no way to be sure what is written is true

We are all moving out of the property and have given our 28 days notice. - where does it say notice is 28 days? No problems with not having a reference. After 2 weeks of giving our notice they responded (the first response in months) to ask for rent due that they believe is on top of the £8000. Basically they have not gone through their accounts properly and missed various payments leaving us having to screenshot bank statements to prove it. This is the second time this has happened. - You did not have to do this, you chose to do this

A letter has been sent to us from them basically reiterating the situation and the obligations involved (example: "you are all still liable for this" "this months rent is still due" "this is the situation") Essentially this looks like a letter they may rely on in court. - Irrelevant.

But now the plot thickens...

Our deposit has not been protected for 3 years (it was in the first year). I have had this information confirmed by the service protecting the deposit and they have confirmed we can take legal action on that. - excellent, sue the LL

We also have not once had a gas or electrical safety inspection since moving in 4 years ago. - report to HSE

The Landlord is also asking for my forwarding address which I absolutely do not want to give them - I know they will hire a private investigator if needed as they have told us to do that with the rouge estate agent, even asking us to pay them £150 and they will hire their usual investigator. We actually know where the estate agents business address is anyway it doesn't take a genius... - so don't give it

What do you guys think? This is probably likely to go to court, we are hoping the landlord rightly looks so incompetent the judge would take an amount of pity. - they wont. You owe the money, the court will order it paid After all what landlord doesn't bring up the fact that 1/4 of the rent has been missing every month for 2 years!

Do we take them to court over the deposit and potentially claim back 3x the amount. Then deal with the £8000 separately? - Yes you sue; how much was the deposit?
Is it down to us to take the estate agent to court or is this our landlord's responsibility? - it is your housemates responsibility

Do we use the fact they have acted unlawfully by not protecting the deposit to regain our deposit back regardless of the fact rent is owed? - possibly

Thanks for finally getting through all that!

The sensible answer here is to simply write-off the deposit against the owed rent; and agree with the landlord for neither party to take action based upon the rent / lack of protection