Advice regarding possession notice

GDB2222

WispyMisty said:

GDB2222 said:

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

Very good point! It just seems a weird set up, I'd automatically assumed that every deposit would actually be held in a specific place, not that there would be a second option.

You have my sympathy @WispyMisty - I looked on the TDS website, and I'm none the wiser.

It's dreadful.  

RHemmings

GDB2222 said:

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

Then why does Shelter say that in the case of an insured deposit that the tenant has to sue an uncooperative landlord?

I really hope that the insurance does work and the tenant can get the money from the scheme if the landlord refuses to play ball. But, it certainly doesn't look that way from the little I've been able to find out. 

GDB2222

RHemmings said:

GDB2222 said:

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

Then why does Shelter say that in the case of an insured deposit that the tenant has to sue an uncooperative landlord?

I really hope that the insurance does work and the tenant can get the money from the scheme if the landlord refuses to play ball. But, it certainly doesn't look that way from the little I've been able to find out. 

That’s worrying, I must admit. Do you have a link please? 

eddddy

WispyMisty said:

... I should imagine the agent would have a duty of care to ensure any lender had given consent to a tenancy agreement? 

I'm sure this aspect isn't your top priority at the moment, but going back to your original post - a letting agent (in England or Wales) must be registered with a redress scheme.

There are only 2 to choose from - The Property Ombudsman and The PRS.

If the letting agent is registered with The Property Ombudsman (TPOS) there is a mandatory code of practice for letting agents which says:

4e
You must advise the landlord of the need to obtain any necessary consent (for example from joint owners, mortgage lender or someone holding a legal charge against the property, superior landlord (*) and/or freeholder etc) and/or licence4 (where mandatory or discretionary licencing requirements are in place) prior to formal creation of a tenancy (*); inspect the necessary consents or ongoing applications;....

Link: https://www.tpos.co.uk/images/documents/Codes/TPOE22-7_Code_of_Practice_for_Residential_Letting_Agents_A4_FINAL.pdf

Once everything is resolved, if your son feels that he has suffered a financial loss - as a result of the agent's failure to check on mortgage lender consents - your son could complain to TPOS.

The Ombudsman can instruct agents to pay compensation to cover tenant's financial losses.

And/or the ombudsman might instruct the agent pay up to £500 compensation for 'aggravation' caused by an agent's actions.


(But this would be based on the Ombudsman's investigation. The Ombudsman might decide that the agent made reasonable checks on the consents, and therefore has no blame.)

RHemmings

GDB2222 said:

RHemmings said:

GDB2222 said:

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

Then why does Shelter say that in the case of an insured deposit that the tenant has to sue an uncooperative landlord?

I really hope that the insurance does work and the tenant can get the money from the scheme if the landlord refuses to play ball. But, it certainly doesn't look that way from the little I've been able to find out. 

That’s worrying, I must admit. Do you have a link please? 

It's the link in my previous post. This one: https://england.shelter.org.uk/housing_advice/tenancy_deposits/how_to_get_your_deposit_back/if_your_landlord_does_not_respond

I did look around a bit more, and I couldn't find anything that contradicts this. Unfortunately I don't have the link, but I did find one site saying that if the landlord doesn't cooperate that the tenant then has to go through the courts. I'm still hoping that this is wrong. 

WispyMisty

I managed to speak to TDS and it does seem that the deposit will remain the LL's responsibility even though title would be with the lender. So if he refuses to repay it would then go through the dispute procedure.
I don't see how they can call it a protection scheme when in some cases the LL is still holding the funds themselves. 

GDB2222

RHemmings said:

GDB2222 said:

RHemmings said:

GDB2222 said:

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

Then why does Shelter say that in the case of an insured deposit that the tenant has to sue an uncooperative landlord?

I really hope that the insurance does work and the tenant can get the money from the scheme if the landlord refuses to play ball. But, it certainly doesn't look that way from the little I've been able to find out. 

That’s worrying, I must admit. Do you have a link please? 

It's the link in my previous post. This one: https://england.shelter.org.uk/housing_advice/tenancy_deposits/how_to_get_your_deposit_back/if_your_landlord_does_not_respond

I did look around a bit more, and I couldn't find anything that contradicts this. Unfortunately I don't have the link, but I did find one site saying that if the landlord doesn't cooperate that the tenant then has to go through the courts. I'm still hoping that this is wrong. 

“Deposits protected in an insurance scheme

You need to apply to court for a money order that confirms how much should be paid to you.

This is sometimes called a small claim. It can take several months but could be much quicker. 

You can ask for a judgment by default if your landlord does not respond to your claim within 14 days of getting a copy from the court.

If you get a money order, send a copy to the scheme. The scheme then refunds your money.”

The protection is in the last sentence. It means that, if a county court decides in the tenant’s favour, they can just collect the money from TDS. That’s important because around half of county court judgments are never recovered, ie the claim never gets paid. 

WispyMisty

@eddddy when we dug a little deeper it seems that when the letting agent first acted for the LL he did have permission but over the years he remortgaged and didn't seek further permission. The agent didn't check with each tenancy, just the first.

eddddy

WispyMisty said:

@eddddy when we dug a little deeper it seems that when the letting agent first acted for the LL he did have permission but over the years he remortgaged and didn't seek further permission. The agent didn't check with each tenancy, just the first.

OK.  So a very dodgy LL!

Remortgaging with a residential mortgage while they actually had a tenant present in the property - which sounds like mortgage fraud.

Out of interest - do you know if the lender is repossessing because they found out about the possible fraud, or is it because of payment arrears?

(Regarding the agent - if you want to push it, the letter(s) of consent probably had a time limit - like 12 or 24 months. I guess it depends when the most recent consent letter said consent was due to expire.)




Edit to add...

Just another thought... Have you seen any evidence that the LL remortgaged as the letting agent describes?

As opposed to the letting agent being 'creative with the facts' to avoid getting into trouble.

RHemmings

GDB2222 said:

You need to apply to court for a money order that confirms how much should be paid to you.

This is sometimes called a small claim. It can take several months but could be much quicker. 

You can ask for a judgment by default if your landlord does not respond to your claim within 14 days of getting a copy from the court.

If you get a money order, send a copy to the scheme. The scheme then refunds your money.”

The protection is in the last sentence. It means that, if a county court decides in the tenant’s favour, they can just collect the money from TDS. That’s important because around half of county court judgments are never recovered, ie the claim never gets paid. 

That's very useful thanks. As collecting on the judgement is probably the most difficult part of the entire process.