Agent refuses to repay deposit

[sweetpea112]

hi

My daughter and her fiance were planning on moving into a one bed flat after a lot of discussions regarding rent costs and such.My daughters fiance went to pay £450 deposit for the property but they were not able to occupy the property for a further 3 weeks but the agents insisted on the deposit being paid immediately.My daughters fiance signed the tennancy agreement and my daughter was to follow the next day to sign her part,unfortunately that evening she found out she was being made redundant and they couldnt finacially afford the property anymore, my daughters fiance rang the agents first thing the following morning to explain the situation but the agent is refusing to refund the deposit. Could you help?

Was the lease legally binding as only one of the tennants had signed?
Should my daughters fiance have got a copy of said lease? (because he wasnt given anything except a reciept for the £450 )
What are the procedures for trying to get the deposit back?

Any help would be apprieciated.

[dazalock]

Very much depends on how the deposit was taken by the agent. If you did not give the deposit as a holding depsoit and it wasnt made clear and in writing that it was non refundable, you have a case to claim it back through the small claims courts. Have a search on the forum for holding deposits

[sweetpea112]

Hi thank you for info,
But also agent has said that deposit has been passed to landlord and he is refusing to return it.
No contract has been exchanged and no indication of deosit being non returnable on the reciept they recieved.
Are we within our rights to insist the agent gives us the landlords name and address?

[dazalock]

Well, if you were the Landlords tenant then the agent MUST give you the LL name and address, as you are not the tenant, Im unsure of the situation. However, Im pretty sure you have a case for the deposit to be returned as no contract has been issued for its use, i.e. a holding deposit. If it were me I would write a letter to the agent enclosing a copy to the LL, stating that, as far as you were notified, the deposit was not to be held as a holding deposit and you or the agent have no documentary evidence of such, and you will be proceeding to court should it not be returned in seven days. Then sue em.

[MrShed]

I think you should threaten legal action with the agent, then pursue it if they do not return it. I think irrespective of who now has the deposit, you should sue the agent, as they were the ones who took it from you, and without a contract, your only tie is with the agent. However, I await correction on this.

[MrWoof]

When you handed over the money, who did you believe was holding it? If you were told that the agent held it then the agent cannot pass it on to the landlord or anyone else without your permission. In this case, your action would be against the agent, not the landlord.

[Jennifer_M]

Also Sweetpea if they try it on saying they're keeping the deposit because your daughter and her fiance have broken the contract (tenancy) just tell them that no tenancy was created because they never took possession of the property and a tenancy agreement is only valid on possession.

£450 does sound like a deposit against damage and there's no reason for them to keep it.

[susan 2]

Jennifer - Could you clarify something for me. You say that a tenancy agreement is only valid on possession? I was under the impression it was valid and legal as soon as it is signed. So if a tenant signs the agreement, pays the deposit and agrees to move in at the next weekend (this for example being the previous Saturday) and then changes their mind I have to give back the deposit even though I will have to re advertise and lose rent because of this person! I must admit I would not refund the bond in that type of case. But as always I am open to further information and correction!

[MrShed]

I think there is some confusion here. A tenancy is only created upon possession and the paying of rent, not just by the creation and signing of a tenancy agreement. But, the signing of a tenancy agreement and then pulling out is still breach of contract.

[Jennifer_M]

MrShed, there is no contract created before possession so there is no breach of contract (as I understand it).

Looking through older posts I've found these:
http://www.landlordzone.co.uk/forums/showpost.php?p=5438&postcount=4

http://www.landlordzone.co.uk/forums/showthread.php?t=416&highlight=acceptance

So as a landlord you can keep the holding deposit (usually around £100-£150) as long as you made it clear in writing that it is a non refundable holding deposit.
When it comes to the deposit against damages (which is usually 1 month to 1.5 month rent) I believe you'd have to give it back.

[MrShed]

*EDIT* Sorry ignore. I agree with you Jennifer yes having read those threads.

[Jennifer_M]

Jennifer. As I understand it, no the AST as a whole is not valid, as there is no tenancy. But, the tenant has signed and agreed to a clear intention to move in on a certain day and pay rent for a certain time. There is obviously a breach here, which the tenant is liable for. However, I am happy to be corrected!

But what the tenant signed isn't valid because he didn't get the keys as soon as it was signed. You can't have an invalid contract being valid in some parts.