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yai ling
29-10-2009, 11:18 AM
I recently won a county court judgment against an Estate Agency which had failed to protect my deposit. The agency was ordered to protect my deposit, pay me 3x the original deposit and pay my court fees by a certain recent date. The agency, however, did not comply. I've been advised to seek a 3rd Party Debt order.

The problem is, the agency has liquidated and has been born again as a "new" agency i.e. same premises, staff and director, but new name and bank account; also, the "old" agency, which was the defendent in my case, I have since learned, was not actually a legal entity, but rather was an individual (the director) "trading as" the old agency; i.e. the old agency's letterhead did not contain the words "Ltd" and its correspondence had no company registration number.

The new agency (which is an Ltd, and has the company number) has instructed tenants to pay rent to the new agency at a different bank. So the old agency's bank account, to which a 3rd party debt order would apply would likely be empty.

And after speaking with a solicitor, I think it could be costly, long and risky to pursue the claim against the new agency.

So I am wondering ... the Housing Act permits a claim to be filed against either a landlord or against an agency acting on the landlord's behalf. As the facts of the underlying TDP case were strongly in my favour (or at least the county court judge thought so), I wonder whether I can either

a) file a new TDP non-compliance claim, this time against the landlord (who is an individual, and thus is unlikely to morph into another entity, as the old agency has done,) or,

b) to speed things up (it's already been a 15 month ordeal) ,to ask that the existing judgment be amended to make the the landlord a defendant, or the defendant, in my already decided case, so that the landlord becomes liable to comply with the original judgement.

This is very frustrating ... over a year of waiting, a successful county court claim, and not only have I not been paid the 3x penalty, I am out over 1,000 pounds in court costs, and to top it of, my deposit remains unprotected. I have played by the rules; the defendant is running rings around me.

(I suppose simply withholding rent is out of the question...)

Any advice would be much appreciated.

westminster
29-10-2009, 11:31 AM
The problem is, the agency has liquidated and has been born again as a "new" agency i.e. same premises, staff and director, but new name and bank account; also, the "old" agency, which was the defendent in my case, I have since learned, was not actually a legal entity, but rather was an individual (the director) "trading as" the old agency
So apply to amend the judgment to name this individual, not his trading name.

yai ling
29-10-2009, 11:45 AM
I was wondering whether I have sufficient evidence for that. What do you think? I have

--a copy of a form which he filed with the court on behalf of the old agency (i,e, the named defendant); this shows he was directing the defence, although it does not state his precise affiliation with the old agency;

-- a letter from him to me, prior to the hearing, urging me to drop the case as, he said, it had no merit; again, there is not title;

-- an old piece of correspondence idnetifying him as the "Manager" of the old agency

-- a new letter from him, to all clients of the old agency, telling them that the new agency has taken over, and that they should now pay into a new account; it is signed by him as the "Director" of the new agency, which again is an Ltd

This guy is slippery and clever. I've learned that he has set up and dissolved about 7 companies over the last 10 years; I fear that he will somehow slip through again. If I do as you say, what could go wrong? Might it not be more straightforward to go after the landlord (my original question)?

westminster
29-10-2009, 12:58 PM
I was wondering whether I have sufficient evidence for that. What do you think?
It's possible you have enough evidence - I don't know - but the best evidence is probably from the old agency bank account, which will presumably have been set up as Mr Slippery t/a Dodgy Agent? Did you by any chance have a standing order set up showing payments made to Mr Slippery t/a Dodgy Agent, or would your bank have any other evidence of this? If not, you could try contacting Mr Slippery's bank quoting s.35 of the Data Protection Act 1998 (but this wouldn't compel the bank to release the info, just allow them to).
http://www.opsi.gov.uk/acts/acts1998/ukpga_19980029_en_5#pt4-l1g35

I would also obtain a copy of the company records (from Companies House) for Dodgy Agent Ltd showing Mr Slippery as sole director.

Do some DIY sleuthing and try to gather as much evidence as you can that Mr Slippery and Dodgy Agent are one and the same.


If I do as you say, what could go wrong? Might it not be more straightforward to go after the landlord (my original question)?

I doubt you can obtain TWO judgments for the same thing, so this doesn't strike me as "straightforward".

If you followed my suggestion and try to have the judgment amended, the worst that can happen is the court refuses the application and you lose the fee. But it's clear what the problem is: you have a judgment against a "trading as" name but not the individual connected to that name, so it's unenforceable - I'm fairly sure the court would amend the order provided you supply sufficient evidence.

yai ling
29-10-2009, 14:52 PM
What about a hybrid of our approaches, i.e. the idea of asking for an amended defedeant id, but asking that it be the landlord -- who, under law, can be named as a defendant and who bears responsibility (certainly morally, perhaps legally) for the misedeeeds of her appointed agent?

westminster
29-10-2009, 16:37 PM
What about a hybrid of our approaches, i.e. the idea of asking for an amended defendant id, but asking that it be the landlord -- who, under law, can be named as a defendant and who bears responsibility (certainly morally, perhaps legally) for the misdeeds of her appointed agent?

Ultimately, the landlord is responsible for protecting the deposit, agent only acts on the landlord's behalf (which is why you should have claimed against the landlord originally).

I don't know whether you can just swap defendants. It seems unlikely to me, as it would deprive the 'new' defendant of the opportunity to defend herself - it's possible she has evidence that the agent didn't know about, or would be able to defend her case more effectively than the agent could.

BTW, is your tenancy still ongoing or has it ended?

yai ling
29-10-2009, 17:59 PM
It is a lapsed AST i.e. it is periodic. I let it lapse because the agent said he would have to charge me 300 pounds to protect the deposit. I balked, refused to renew, and filed my claim.

As for LL having better evidence etc -- I doubt it. The tenancy agreement was signed, the deposit was paid but not protected -- this is plainly documented.

yai ling
29-10-2009, 18:04 PM
I recently won a TDP case against my estate agent. I understand that that means I can't be "section 21'd" as the deposit wasn't protected. (It still hasn't been, despite the court order; see my other post of today). But there is nothing to stop LL from effectively forcing me out by raising the rent to something extortionate, correct? I am now on a statutory periodic tenancy (I was not during the period relevent to the TDP case).

yai ling
29-10-2009, 18:55 PM
I have been advised that if a my LL wishes to raise my rent, I have a right of appeal to a Rent Assessment Panel, which will determine the reasonableness of any proposed increase. I have also been told that such Panels consider what a "fari" rent is based on rents for similar dwellings in the area.

This would appear to prevent LL from effectively forcing me out by, say, suddenly doubling my rent, which is about par for my area (judging from other advertised rents). Is this conclusion correct?

Background: I was on a fixed-term AST, which became periodic after I refused to sign a new agreement as the estate agent had refused to protect my deposit. That fixed-term AST said nothing about rent reviews or changes. I understand that its basic terms still govern my periodic tenancy now (expect of course for the term).

I filed a claim in County Court, which ordered the deposit to be protected along with the 3x penalty. Agent has not complied with the judgment, so LL cannot section 21 me; but perhaps might try to force me out by charging an extortionate rent; hence my question.

Poppy35
29-10-2009, 19:12 PM
yes! If landlord serves you s13 rent increase then you need to reply to landlord informing him that you are referring matter to rent assesment panel, contact them, they will visit house and check out market value and then inform landlord what the fair rent should be.

You are protected from being asked to leave under S21 due to landlord not protecting your deposit so you should be ok.

jeffrey
30-10-2009, 10:09 AM
L can increase rent but only by:
a. terminating AST1 and offering AST2 at increased rent; or
b. using a procedure specified in the written AST; or
c. using s.13 of 1988 Act.

Moderator1
30-10-2009, 10:36 AM
Three separate threads by same member have been merged here. Do not cause problems by starting continuation threads; use the same one.

jeffrey
30-10-2009, 10:41 AM
It is a lapsed AST i.e. it is periodic. I let it lapse because the agent said he would have to charge me 300 pounds to protect the deposit. I balked, refused to renew, and filed my claim.
'Lapsed' is misleading. No lease/tenancy can 'lapse'. By s.5(3) of the 1988 Act, fixed-term AST can continue as SPT; that seems to be the case here.

yai ling
17-12-2009, 10:49 AM
I am a tenant. I’d been under a 12 month AST. But in the summer of last year, when I was asked to sign a new 12 month AST, I asked the estate agency to protect my deposit, which they had not done. They refused unless I paid them several hundred pounds as an “admin fee”. That seemed bogus to me, so I refused to sign a new 12 month AST, and filed a claim in county court. The named defendant was the agency, not the landlord. The tenancy became a periodic tenancy, and still is.

I won the claim in court this autumn. The agency was ordered to protect my deposit, pay me 3X the deposit, and pay my court costs. But the agency never did.

Rather, around the time of the compliance deadline, the agency (we’ll call it Agency A) changed business identities. It had been “Agency A” [not an Ltd] but became “Agency B, Ltd”. Same premises, staff, director and phone number – so effectively the same outfit, but a new legal entity.

When I asked the director when he intended to comply, he refused to answer. I sought and won a 3rd party debt order, but by the time it was issued, there were no funds in Agency A’s account, so no joy.

Not long ago I received a letter from Agency B (a general form letter addressed to “Dear Tenant”) informing me that Agency A was no more, and that Agency B is taking over the affairs of Agency A.

But I’ve never signed anything designating Agency B as the agent; nor has the landlord informed me that Agency B is now the agent.

Yesterday Agency B informed me they want to come round and do an inspection. My understanding is that under my current periodic AST, I am bound by the same terms as those in the last 12 month AST agreement I signed; those terms permit inspections. But I’ve not seen anything binding me to those terms if the agent specified in the agreement (Agency A) no longer exists.

It seems to me a bit rich that Agency B thinks it gets the rights from my agreement with the landlord and Agency A -- e.g. right of entry and inspection -- without the obligations -- i.e. to protect my deposit and comply with a court order.

In fact I have seen nothing from Agency B even acknowledging that the existence of the deposit paid to Agency A; it seems Agency B assumes I will resign myself to it just vanishing along with Agency A.

Would I be on sound legal ground to write to the landlord to inform him

-- that until I receive written notification from him designating Agency B as the agent, and until I sign a new agreement with both him and Agency B to that effect, I’m under no obligation to comply with their demand to enter and inspect?

-- perhaps additionally, that I will only sign an agreement with Agency B if the agreement explicitly acknowledges that 1) Agency B is now responsible for my deposit paid some years ago (“after all, dear Landlord, I can’t accept that it has merely vanished” etc etc), and 2) Agency B must comply with all relevant legislation relating to deposits in general, and with the court order against Agency A regarding my deposit in particular?

Would this be a smart thing to do, or could it backfire somehow?

littlemisslettings
17-12-2009, 11:01 AM
Your agreement is with the landlord not the agency - the agency acts for the landlord not you so your tenancy agreements still stands. You might want to seek the landlords authority though that he agrees for Agency B to act on his behalf before letting them in for an inspection, but i expect he has agreed to continue with them. The company i work for made some similar changes a few years ago and it makes zero difference in terms of day to day business.

With regards to the bond deposit, i am surprised that Agency A was ordered to protect it and not the landlord (who would in tern counter claim agains the agency) as it is ultimately the landlord who is responsible for this. It does not matter if agency A's account is empty, the bond is still the landlords responsibility (lucky him)

yai ling
17-12-2009, 11:43 AM
Thanks for your reply.

Re: "Your agreement is with the landlord not the agency - the agency acts for the landlord not you so your tenancy agreements still stands."

My point is that my agreement with the landlord states that Agency A is the agent. So until that agreement has changed, it would seem to me I'm under no obligation to accede to any of Agency B's demands.

So let's say landlord wants to change the agreement so that Agency B is designated the agent. My understanding is that I can't be forced to agree to that; after all, a court has ruled that the deposit was not protected, therefore under the Housing Act I cannot be Section 21'd ; and as I'm actually in advance on my rent, I cannot be otherwise forced out. And certainly,a new agreement which fails to even recognise that the deposit has been paid can't be forced on me either?

littlemisslettings
17-12-2009, 12:40 PM
"My point is that my agreement with the landlord states that Agency A is the agent. So until that agreement has changed, it would seem to me I'm under no obligation to accede to any of Agency B's demands" - hence why i recommended that you could insist that the landlord must write to you to confirm that agency B is the new agent appointed to manage the property, however, agency b has already done this presumably under the landlords authority. The agent named on the agreement has changed but the actual terms and conditions of the tenancy agreement would remain the same

"So let's say landlord wants to change the agreement so that Agency B is designated the agent. My understanding is that I can't be forced to agree to that; after all, a court has ruled that the deposit was not protected, therefore under the Housing Act I cannot be Section 21'd ; and as I'm actually in advance on my rent, I cannot be otherwise forced out. And certainly,a new agreement which fails to even recognise that the deposit has been paid can't be forced on me either?" - in short - yep!

(sorry - multi quote thingy doesnt seem to do anything for me)

westminster
17-12-2009, 15:58 PM
I am a tenant. I’d been under a 12 month AST. But in the summer of last year, when I was asked to sign a new 12 month AST, I asked the estate agency to protect my deposit, which they had not done. They refused unless I paid them several hundred pounds as an “admin fee”. That seemed bogus to me, so I refused to sign a new 12 month AST, and filed a claim in county court. The named defendant was the agency, not the landlord. The tenancy became a periodic tenancy, and still is.

I won the claim in court this autumn. The agency was ordered to protect my deposit, pay me 3X the deposit, and pay my court costs. But the agency never did.

Rather, around the time of the compliance deadline, the agency (we’ll call it Agency A) changed business identities. It had been “Agency A” [not an Ltd] but became “Agency B, Ltd”. Same premises, staff, director and phone number – so effectively the same outfit, but a new legal entity.

When I asked the director when he intended to comply, he refused to answer. I sought and won a 3rd party debt order, but by the time it was issued, there were no funds in Agency A’s account, so no joy.


Have you attempted to have the court order amended, as I suggested in your previous thread on the same subject several weeks ago?
http://www.landlordzone.co.uk/forums/showthread.php?t=23466

westminster
17-12-2009, 16:29 PM
Not long ago I received a letter from Agency B (a general form letter addressed to “Dear Tenant”) informing me that Agency A was no more, and that Agency B is taking over the affairs of Agency A.

But I’ve never signed anything designating Agency B as the agent; nor has the landlord informed me that Agency B is now the agent.
So write to LL asking for confirmation that Agency B is acting on LL's instructions. Note that the landlord doesn't need your signed agreement in order to appoint Agency B to act on his behalf; he need only inform you that this is the case.



It seems to me a bit rich that Agency B thinks it gets the rights from my agreement with the landlord and Agency A -- e.g. right of entry and inspection -- without the obligations -- i.e. to protect my deposit and comply with a court order.
Agency B acts on LL's behalf, it doesn't have any "rights" nor are the provisions for inspections connected to, or in exchange for, the landlord's obligation to protect the deposit. The trouble is that you seem to view the agent as a third party in the contract, but it's not - it acts purely and solely on behalf of the LL, and the LL can appoint anyone he wishes to act on his behalf, whether that's agency A, B, C, or Z. This has zero effect on your contract with the landlord.


Would I be on sound legal ground to write to the landlord to inform him

-- that until I receive written notification from him designating Agency B as the agent, and until I sign a new agreement with both him and Agency B to that effect, I’m under no obligation to comply with their demand to enter and inspect?

-- perhaps additionally, that I will only sign an agreement with Agency B if the agreement explicitly acknowledges that 1) Agency B is now responsible for my deposit paid some years ago (“after all, dear Landlord, I can’t accept that it has merely vanished” etc etc), and 2) Agency B must comply with all relevant legislation relating to deposits in general, and with the court order against Agency A regarding my deposit in particular?
Again, this shows your confusion over the role of the agent. Your existing agreement is not with "both" the LL and Agency A. Your contract is only with the LL. You cannot sign an agreement with Agency B and no-one is asking you to.

In terms of the more general issue of LL's rights of entry, you as tenant have the right to refuse entry to the LL or his agents/contractors. LL would then have to obtain a court order to gain legal access for inspection etc. However, the terms of your TA may make you liable for his legal costs in obtaining the order so it may not be in your best interests to refuse reasonable requests for access.

johnboy
17-12-2009, 17:35 PM
If you have been a good tenant and the agents do seem a bit dodgy why dont you contact the landlord direct and explain you have lost all confidance in the agency and explain your reasons then offer to deal direct with him. You could remind him that he wouldnt be paying any commission and you would set up a standing order to his bank account.

Of course he would only consider it if he was not tied into the agency with penalties for leaving..

agent46
17-12-2009, 19:33 PM
Have you attempted to have the court order amended, as I suggested in your previous thread on the same subject several weeks ago?
http://www.landlordzone.co.uk/forums/showthread.php?t=23466

I don't mean to pick two arguments with you in one night, but a good deal of the advice in that linked thread is wrong.

(1) You cannot "amend" a judgement. You can appeal judgements, or apply to set them aside (neither of which would apply in this case), but you cannot "amend" them.

(2) TDP compliance is cast upon both LL and, if relevant, LA; see, IIRC, HA 2004 s.212(8). A claim against the LA, if they received the deposit that is, is perfectly proper.

islandgirl
17-12-2009, 20:55 PM
of course you can refuse the inspection....whatever your agreement says

agent46
17-12-2009, 21:11 PM
of course you can refuse the inspection....whatever your agreement says

More potentially bad advice.

If the Agent B is properly appointed, then that course of action would place OP in breach of contract.

westminster
18-12-2009, 00:23 AM
I don't mean to pick two arguments with you in one night, but a good deal of the advice in that linked thread is wrong.
I'm not aware of any previous argument. You may be confusing me with Wickerman.


(1) You cannot "amend" a judgement. You can appeal judgements, or apply to set them aside (neither of which would apply in this case), but you cannot "amend" them.
So, what course of action do you suggest OP should take, given that he has obtained a judgment against the trading name of an individual, but cannot enforce it because the trading entity no longer exists and the judgment does not name the individual?


(2) TDP compliance is cast upon both LL and, if relevant, LA; see, IIRC, HA 2004 s.212(8). A claim against the LA, if they received the deposit that is, is perfectly proper.
Yes, I know that is it perfectly proper (s.212(9)(a)) but the landlord would have been a better bet in the circumstances, being a more easily identifiable target for enforcement.

yai ling
25-01-2011, 18:31 PM
Summary: After a very long delay, L has finally protected my deposit with the DPS. The problem is, L has knowingly made false claims to the DPS misrepresenting the nature of the tenancy and when the deposit was received (perhaps to cover up L’s delay). I am not comfortable with this, as a) it's wrong and b) not clarifying the facts on record with the DPS might make me an accessory to willful misrepresentation. I also wonder whether L has breached some law or regulation.

Details: I entered into a 12 month AST in June 2006, renewed in June 2007. Neither L nor the agent protected the deposit after June 2007. I learned about the TDP provisions of the Housing Act in May 2008, and asked the agent to protect the deposit. Agent refused. I was asked to sign a 12 month renewal but refused until the deposit was protected, thus entering a periodic tenancy under which I still remain. I won a CC judgment against the agent in 2009 ordering the deposit to be protected and payment to me of 3x the deposit. The agent appealed but lost last September. The agent at all events never complied. (He has not complied with a number of CC judgments, I have since learned).

Throughout this, L stood on the sidelines, refusing to get involved; but last October decided to break ties with the agent, claiming he was not passing on rent. I documented to L that I had indeed been paying to the agent. L offered to deal with me directly. I agreed provided L protected the deposit. After a bit of prodding, L last week protected my deposit. I have received documentation from the DPS to this effect. I am happy about this.

However, L effectively lied to the DSP. L said the tenancy – a 6 month tenancy -- began, and the deposit was received, last week. This is clearly untrue. For one, I have not signed any new tenancy agreement, much less one for 6 months; I remain under a periodic tenancy governed by the terms of my last agreement, signed June 2007. L is also misstating the date the deposit was received by 3.5 years. I asked L why L had done so; L responds evasively. I suspect L does not want it on record that L is so late in complying with the Act. I am unsure why, as having protected the deposit, it seems no case (esp. after Honeysuckle et al) can be brought against L.

At all events, I am not happy with this. Honesty is the best policy, and I dislike being asked to go on record playing along with a lie. I feel I should set the record straight with the DPS. Would I make myself somehow legally vulnerable by doing so? Or by NOT doing so? Has L committed some breach by submitting false information to the DPS?

I’d be grateful for any advice.

Snorkerz
25-01-2011, 21:47 PM
While I fully understand your concerns, and well done on pursuing the 3x deposit claim, you have nothing to worry about.

You may want to write a correction to the DPS for your own peace of mind, but they won't change anything. In a way, the current situation may help you in future because the LL may have to prove the ondition of the property on the date he has stated the tenancy began if there is a dispute - which of course, even if he has an inventory, he can't do.

mariner
25-01-2011, 22:30 PM
AFAIK the lodged deposit scheme, rather than the insurance schemes, does allow late deposits, as you say after Honeysuckle I doubt any action since it is protected before the end of the Tenancy, which hasn't yet ended if you rolled over into a periodic. Now the LL can serve a valid s21 etc if he wishes.
If any questions were asked about dates, LL will prob claim he only took over management of the STA after he sacked the LA for their misdemeanours with deposit and dated his registration accordingly. The inventory would have been compiled whist the LA was managing.

westminster
30-01-2011, 11:35 AM
However, L effectively lied to the DSP. L said the tenancy – a 6 month tenancy -- began, and the deposit was received, last week. This is clearly untrue. For one, I have not signed any new tenancy agreement, much less one for 6 months; I remain under a periodic tenancy governed by the terms of my last agreement, signed June 2007. L is also misstating the date the deposit was received by 3.5 years. I asked L why L had done so; L responds evasively. I suspect L does not want it on record that L is so late in complying with the Act. I am unsure why, as having protected the deposit, it seems no case (esp. after Honeysuckle et al) can be brought against L.

At all events, I am not happy with this. Honesty is the best policy, and I dislike being asked to go on record playing along with a lie. I feel I should set the record straight with the DPS. Would I make myself somehow legally vulnerable by doing so? Or by NOT doing so? Has L committed some breach by submitting false information to the DPS?

I believe the DPS' computer system doesn't allow deposit protection to be backdated as far back as 2007. LL is no doubt being evasive because he doesn't understand that late compliance isn't against the law. You are not implicated in any 'misrepresentation' etc.

You've got what you wanted, the deposit is properly protected, and I suggest you now move on and get on with your life instead of trying to find more things to worry about.

westminster
30-01-2011, 11:46 AM
AFAIK the lodged deposit scheme, rather than the insurance schemes, does allow late deposits, as you say after Honeysuckle I doubt any action since it is protected before the end of the Tenancy

Both Tiensia v Universal and Honeysuckle v Fletcher involved late protection with MyDeposits, one of the two insurance-based schemes.

Whilst MyDeposits' rules state that they won't protect deposits submitted to them more than 14 days after they were received by LL, the Court of Appeal ruled that this was no more than an administrative requirement and not one of the 'initial requirements' under the legislation (therefore, the protection was valid in the eyes of the law).

Moderator1
31-01-2011, 10:30 AM
Three threads by the same member have been merged here. Please do not start a new thread if you merely wish to continue a previous discussion or report on subsequent developments. It can cause unnecessary confusion (quite apart from losing the connection with facts previously established or legal points previously explained).