Tenancy deposit return issue. Sending a Letter Before Action.

swingaloo

I have previously posted on here for a friend to get advice re getting their deposit back. The thread seems to have gone off at a tangent and to save people reading through the entire saga I have started this thread with a simplified explanation to ask another question.

Situation is- Letting agent has said they want to deduct about 25%  of their deposit but tenants have disputed this. To date none of the deposit has been returned. 

Tenants and letting agent agreed to use DPS and a dispute was raised. Letting agent has refused to respond to DPS so tenant has written to agent asking that they return the deposit or respond to the dispute through the DPS within a 14 day time frame but this has passed and they are still being ignored. So now they are having to go down the Statutory Declaration route in order to proceed to court action.  

But, they have been told by Shelter that they need to send a 'Letter Before Action' to try to move the agents before spending money they cant really afford on starting Court Action (they are aware that there is no point sending a LBA unless they are prepared to follow up with court action).

Hence the question- Shelter have said they should send the LBA direct to the landlord however its the agents they have named on the DPS dispute. So, do they send the LBA to the agent, landlord, or a copy to both?

notrouble

If landlord has refused to respond to DPS, and assuming the tenant has put in a claim to DPS for full return of the deposit, DPS should return the deposit to the tenant.

But if the tenant wishes to go down the legal route ie apply to court for the money, then the LBA should be sent to the person with whom the tenant has a contract - the landlord. The agent could be named as a co-defendant on the court action, in which case send the LBA to both parties - landlord and agent.

swingaloo

notrouble said:

If landlord has refused to respond to DPS, and assuming the tenant has put in a claim to DPS for full return of the deposit, DPS should return the deposit to the tenant.

But if the tenant wishes to go down the legal route ie apply to court for the money, then the LBA should be sent to the person with whom the tenant has a contract - the landlord. The agent could be named as a co-defendant on the court action, in which case send the LBA to both parties - landlord and agent.

Thank you for the reply. That's what I thought, that if there was no response then they would automatically get refunded but its not the case. Ive spoken to the DPS on their behalf as they are quite elderly and asked me to help. The DPS day there is nothing they can do to force the agent to respond and until they do the dispute is in limbo. They have said the next step is to fill in a Statutory Declaration form which they then have to get witnessed by a solicitor which is obviously going to cost them so before going down that route they are hoping a LBA may do the trick.

NewShadow

swingaloo said:

notrouble said:

If landlord has refused to respond to DPS, and assuming the tenant has put in a claim to DPS for full return of the deposit, DPS should return the deposit to the tenant.

But if the tenant wishes to go down the legal route ie apply to court for the money, then the LBA should be sent to the person with whom the tenant has a contract - the landlord. The agent could be named as a co-defendant on the court action, in which case send the LBA to both parties - landlord and agent.

Thank you for the reply. That's what I thought, that if there was no response then they would automatically get refunded but its not the case. Ive spoken to the DPS on their behalf as they are quite elderly and asked me to help. The DPS day there is nothing they can do to force the agent to respond and until they do the dispute is in limbo. They have said the next step is to fill in a Statutory Declaration form which they then have to get witnessed by a solicitor which is obviously going to cost them so before going down that route they are hoping a LBA may do the trick.

Hi Again, 

This is the point we were at on the last thread, yes? 

What I mentioned in the last thread - and again here - is that it seems your friends, knowingly or not, have not yet actually requested their deposit back; they seem to have simply disputed the landlord's requested deductions. The process to claim back the deposit without the agreement of the landlord is via statutory declaration. 

There's no cost attached to sending a LBA - but a LBA is a letter before [court] action so, unless your friends intend to: 
1. spook the agent into responding; 
2. actually pursue a court case*; 
it's not required/may not be helpful. 

Given it seems you want option 1 - that's fine - but what action are you going to be putting in your letter?

If you say that it's notice before you take court action, a good agent will know you've not submitted the statutory declaration and might assume you're not serious/don't know what you're doing therefore safe to ignore OR your letter can threaten the statutory declaration... which isn't exactly a threat given that's the next step anyway and you'd have to issue a new LBA before taking them to court once you've finished with the DPS process. 

A letter costs nothing but might not make anything happen - a statutory declaration costs between £5-£20 and starts the next phase of the reclaim. If your friends are getting sick of the delays, isn't it worth £20 to start the process which leads to  claiming their deposit back rather than trying mind tricks?

If they decide you want to go the LBA route - let us know if you want help tweaking the Shelter template. 



*As a note, the courts generally frown upon people escalating to court action when there are alternative routes available so - worst case - your friends are risking a not sympathetic hearing and possibly not getting costs awarded if they jump directly to small claims/court action. 

swingaloo

Thank you for your reply. I understand what you are saying about the court action. I think they are getting conflicting info from different places. I misunderstood you before when you were saying they had not requested the deposit back as I had taken them writing to the agent and opening the dispute as doing that.
Up to now the steps they have taken are-
Written to the agent requesting a return of the deposit. (the response was that the agent intended to make deductions which were disputed).
They wrote to agent again saying they disputed the amount and got an email saying the amount had now increased substantially.
They then rang the agent for clarification of the sum to be withheld as it was different from the original sum which had been quoted in writing. Was told it could not be dealt with over the phone and to request the details in writing which they did.  (No response at all to that request).
They spoke to DPS and were told they need to inform the agent that they wanted to use the DPS  and request the agents agreement to go to a dispute. They did and the agent agreed in writing to use the dispute service.
Dispute opened and agent ignored. Tenants wrote again to agent and requested that they either returned deposit or responded to the dispute but no response.

So I will advise them not to do the LBA and instead go via the Statutory Declaration.

thank you.