Tenancy Agreement and Deposits
In March 2009 I gave a letting agent £7800 as 6 months payment and deposit-because of problems with the landlord a builder in liquidation there were lots of faults and hassles and we left after 5 months paying an agreed £1800 as rent.At no time was the deposit protected. Using the same letting agent we moved to another property.In the tenancy agreement it specifically states that the letting agent would use TDS to protect the deposit of £3000.Section 1.11 (this is the same tenancy agreement as on the previous property) The normal TDS clauses are included as per their requirements in the agreement. But in 4.6 the scheme administrator is identified as DPS - this is the only mention and all other references relating to the deposit relate to TDS.
The agent subsequently protects the deposit with DPS in two payments £1000 and £2000 on two different dates 5 months after the new let began - so effectively our deposit was unprotected for 10 months. By using using DPS he has effectively got round the late registration because DPS do not have any initial requirements, and has weakened my position. However at no time has he ever provided the prescribed information for either of the schemes. What are my rights and what would be the best next steps.
Advice and guidance greatly appreciated
Robbo1402
Hi Robbo, Extensive
Hi Robbo,
Extensive information about the recent case governing deposits can be found at the following lawforum post:
http://www.thelawforum.co.uk/tenancy-deposit-scheme-draycott-v-hannells-lettings
I'll come back on the forum later to give you a specific answer about the questions that you have raised but hopefully in the meatime the link should provide you with some useful information.
I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.
Telephone 02476 553181
Tenancy Agreement and Deposits
Hi Gerard
I look forward to your comments
Kind regards
Robbo
Hi Robbo, Your question
Hi Robbo,
Your question really has two parts to it, the first part of your question deals with the initial deposit which was unprotected and the second part of your question deals with the second deposit which appears to have been protected using the DPS but the prescribed information has not been served on you. I will deal with each point in turn.
Was the original deposit that was paid for the first property ever returned to you? I assume that this is the case. I presume that your question therefore is whether you can still sue the agent for 3 times the deposit for his failure to comply with with the terms of the tenancy deposit legislation even though your deposit has been returned. Although the agent has committed a technical breach of the legislation, if your deposit has been returned to you a court may find that there is no sanction available to you. Unfortunately I cannot find any cases where these particulars circumstances have been raised before a judge.
In relation to the second part of your question the deposit has been protected but not within the 14 day statutory period. As the deposit has been protected with the deposit protection service the agent has effectively complied with the judgement in Hannells v Draycott Lettings i.e. he has protected the deposit before proceedings have been started. However he has not provided the prescribed information. Unfortunately I am unable to find any court cases where these exact circumstances have been at issue either. The agent has technically breached the legislation because although the deposit has been protected he has not provided you with the prescribed information.
I presume also that you now wish to know whether you can take any legal action against the landlord or the agent.
As this is a developing area of the law it is difficult to say with any degree of certainty what a judge may decide given these particular circumstances. However I think that it is fair to say that the recent high court case shows that judges may be reluctant to award damages of three times the amount of the deposit for technical breaches of the legislation unless they are left with no other option.
Your best course of action is to issue proceedings against the agent claiming three times the amount of each deposit paid plus the return of each deposit if they have not already been paid to you. Your claim should be as comprehensive as possible and you should site all of the relevant legislation which can be found here:
http://www.opsi.gov.uk/acts/acts2004/ukpga_20040034_en_19#pt6-ch4
You can issue the claim via moneyclaimonline:
http://www.opsi.gov.uk/acts/acts2004/ukpga_20040034_en_19#pt6-ch4
As a breach has clearly occurred it may well be that the agent is unsure how to proceed and offers to settle the matter with you without going to court.
I hope all of the information helps. I realise that the answers are not definitive but as this is a developing area of the law there are few reported cases on the subject.
I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.
Telephone 02476 553181