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SE1 Tenant
09-11-2009, 18:48 PM
Hi all,

Let me first summarise the situation at hand:

- Landlord ("LL") defaulted on the mortgage and LPA Receiver ("LPA-R") was appointed in july 2008.

- LPA-R has received rent on time from me ever since their appointment and has accepted the STA has it was originally signed with LL, in which the deposit is documented (i.e. no new STA has been issues/signed after the LPA-R was appointed, but they have reviewed and accepted it)

- LL originaly protected the deposit through mydeposit.co.uk but this protection has now expired

- I paid my deposit originally to LL and LPA-R has not successfully transferred it from LL (nor have they made any serious attempts to do so)

I am now in a situation where the LPA-R says they won't protect my deposit as, according to them, the original LL still holds the deposit.

Personally I believe that to be wrong as the LPA-R has accepted me as a tenant, on the basis of the original STA in which the deposit is document and I have timely been paying the rent to the LPA-R ever since their appointment. The LPA-R having the powers to collect rent I believe they should also be obliged by all the landlord's contractual and statutory dutys toward the the tenant - but is this really the case?

Who has the legal obligation in regards to my deposit (to protect it and to return and at the end of tenancy) and who can I, if needed, file the 3 times deposit claim in the County Court against? The LPA-R (and defacto landlord) or the original LL (who still holds the deposit)?

Many thanks in advance for any information that could help me with this situation.

westminster
10-11-2009, 01:07 AM
Who has the legal obligation in regards to my deposit (to protect it and to return and at the end of tenancy) and who can I, if needed, file the 3 times deposit claim in the County Court against? The LPA-R (and defacto landlord) or the original LL (who still holds the deposit)?
I don't know who is now technically responsible for deposit protection, and IANAL but I'm replying as nobody else has. I assume that by STA you mean Assured Shorthold Tenancy (AST).

However, it's unclear from your post as to whether anyone is obliged to re-protect the deposit; you say the mydeposits.co.uk protection has "expired" - are you sure of this, because AFAIK LLs are not obliged to re-protect unless a new tenancy agreement has been issued - and from the sound of it this hasn't happened - is it now a periodic tenancy? If so, then the protection may still be in place.

Back to the original question, the deposit legislation is in the following link:
http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4
(N.B. It is notoriously poorly drafted, and leaves some room for 'interpretation').

You'll note that under s.214 "Proceedings relating to tenancy deposits" it says in s.214(3) that the court can order "the person who appears... to be holding the deposit to repay it to the applicant".

So, if the LL hasn't handed over the deposit to the LPA-R, he would seem to be the person responsible.

If you issue a claim for return of the deposit only, you could always name both LL and LPA-R as co-defendants; that way, they'll have to argue it out as to who is liable (not really your problem). The claim will be allocated to the small claims track where court fees are low and you are not exposed to the defendant's legal costs.

If you want to claim for the 3x penalty, it would be highly advisable to seek legal advice first as you may be exposed to the defendant's legal costs if you lose - don't even think about issuing a claim without first establishing beyond doubt 1) that the deposit is not protected, 2) the identity of the defendant.

SE1 Tenant
10-11-2009, 09:16 AM
Many thanks for your response.

A few follow-up questions and some clarifications:

1) Yes, you are right, I did indeed mean AST

2) The AST has expired but we continue to pay, on LPA-R's instruction, the rent accoridng to the AST. Does that mean that is not a "periodic tenancy"?

3) In regards to LLs obligation to the deposit (protection and return of it), does it differ if I now have a "perioic tenancy" instead of an AST?

4) Yes, I'm pretty sure the mydeposit.co.uk has expired as I have received a letter from them saying that the LL "is no longer a Member of this Scheme" and continues "As a consequence, the deposit held by them on your behalf will cease to be protected by the Scheme......."

5) Question then remains is it the original LL (who still holds the deposit) or the LPA-R that is obliged to protect (and return when that time comes) the deposit? Again, personally, it seems more logical to me that if the LPA-R has been given the powers and beneft to collect rent and step into the LLs obligation in all other respects, that they should also inherit all the obligations related to the deposit and it should therefore be in their best interes to recover/transfer the deposit from the original LL. Having failed, or as in this case not even attempted to do so, should not relieve them from the obligations of protecting and returning the deposit. But, again, this is the core of my problems. Unless I know who I can legally make my claim for deposit return + the 3 times deposit they can just keep on playing me off against the other. Which they do.

Again, many thanks for any further information or clarification that could help me get to the bottom with this and protect my deposit.

SE1 Tenant
10-11-2009, 09:21 AM
Additional info: The last AST that was signed was dated September 2007 so the Periodic Tenancy effectively started September 2008.

Thnx

westminster
10-11-2009, 12:48 PM
2) The AST has expired but we continue to pay, on LPA-R's instruction, the rent accoridng to the AST. Does that mean that is not a "periodic tenancy"?
You have a periodic tenancy. It began the day after the fixed term expired. All terms in the original contract still apply, except for those relating to giving notice. Statutory notice periods now apply - 1 month for you, 2 months for LL, notice to expire at the end of a rental period, i.e. if fixed term expired 15th September, periods run 16th - 15th of the month.


In regards to LLs obligation to the deposit (protection and return of it), does it differ if I now have a "perioic tenancy" instead of an AST? No. You still have an AST, just a periodic one. Your deposit should still be protected.


Yes, I'm pretty sure the mydeposit.co.uk has expired as I have received a letter from them saying that the LL "is no longer a Member of this Scheme" and continues "As a consequence, the deposit held by them on your behalf will cease to be protected by the Scheme......."
I've never heard of this happening before. I think what would normally happen is that, when a fixed term expired and became periodic, no re-protection would be required; re-protection only necessary if you'd signed a brand new contract.


Question then remains is it the original LL (who still holds the deposit) or the LPA-R that is obliged to protect (and return when that time comes) the deposit? ....Unless I know who I can legally make my claim for deposit return + the 3 times deposit they can just keep on playing me off against the other. Which they do.
As I said before, you must get legal advice if you wish to pursue a 3x deposit claim.

On the face of it, you do not have grounds to make an application under s.214(1) - LL originally complied with protection - so this is another potential stumbling block. It could be argued that the obligations only arise when a deposit is paid, and it hasn't since been re-paid (either to LPA-R or in relation to a new contract).

There is also the possibility that mydeposits.co.uk is in some way liable. One might question their ability to arbitrarily cancel protection. It may breach their obligations under Schedule 10 of the Housing Act 2004
http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_34#sch10

In short, it's potentially a legal minefield. Although *somebody* is responsible, you may end up having to accept that it's inadvisable to proceed with such a claim, and settle for the low-risk option of issuing a claim just for return of the deposit at the end of the tenancy against LL & LPA-R.

SE1 Tenant
10-11-2009, 13:24 PM
Westminster, many thanks for your extensive response! Incredibly helpful!

One clarifying point/question:

==============
Quote:
Yes, I'm pretty sure the mydeposit.co.uk has expired as I have received a letter from them saying that the LL "is no longer a Member of this Scheme" and continues "As a consequence, the deposit held by them on your behalf will cease to be protected by the Scheme......."

I've never heard of this happening before. I think what would normally happen is that, when a fixed term expired and became periodic, no re-protection would be required; re-protection only necessary if you'd signed a brand new contract.
===================

I called mydeposit.co.uk and asked if the deposit was protected and they confirmed that, no, it had expired.

I had the impression that LLs pay for this protection on a periodic basis, usually in line with the dates of the tenancy agreement, and will need to be renewd on a periodic basis - either if new tenancy agreement is signed or if not in line with Periodic Tenancy on some ongoing basis.

But, are you saying that when it becomes a Periodic Tenancy that no new "insurance fee" need to be paid by the LL to mydeposit.co.uk (if then now use his scheme)?

Again, many thanks for your, and anyone elses, input!

westminster
10-11-2009, 13:47 PM
I called mydeposit.co.uk and asked if the deposit was protected and they confirmed that, no, it had expired.

I had the impression that LLs pay for this protection on a periodic basis, usually in line with the dates of the tenancy agreement, and will need to be renewd on a periodic basis - either if new tenancy agreement is signed or if not in line with Periodic Tenancy on some ongoing basis.

But, are you saying that when it becomes a Periodic Tenancy that no new "insurance fee" need to be paid by the LL to mydeposit.co.uk (if then now use his scheme)?


I honestly don't know how each of the schemes operate, as my letting agent handles my tenants' deposits. Perhaps LL was indeed obliged to pay an annual fee, failing which the protection was cancelled.

It just struck me as very unusual; we get a lot of posts on the forum about LLs failing to protect the deposit, I also read a few landlord&tenant/legal blogs which report deposit protection claims and I've never heard of this scenario before. It also seems counter-intuitive to the purpose of the schemes, (i.e. to protect the deposit against LL or agent disappearing with the money etc), if protection can be cancelled at the drop of a hat.

worzelgummage
10-11-2009, 13:52 PM
I'd be tempted to hold back the last x months rent to cover the deposit in this situation.

havensRus
10-11-2009, 14:14 PM
SE1Tenant, I believe you have unfortunately fallen between the cracks on this matter. As I use mydeposits myself, I've had a look at the rules, and think I can explain what's happened.

1. The LL is now subject of a receivership, which is against the rule A1.3.6 of MyDeposits.co.uk

2. MyDeposits have cancelled the LL membership as per their rule A3.1.5 because of the appointment of a receiver. It may also be that the LL did not renew his/her membership, as required in A2.1 and A2.2.

3. However, having had the membership cancelled, in accordance with Rule A5.1, the deposit continued to be protected but only for 90 days maximum, after the memebership was cancelled. Which is when you probably received the letter informing you of the cancellation.

The normal process is that once a deposit is registered, it is protected for the lifetime of the tenancy, whether in fixed or periodic status. If a new AST is issued, then the deposit needs to be reprotected. You have no new AST, so there was no need to reprotect it.

My view is that

1. Mydeposits should have informed you as soon as the LL's membership was cancelled or not renewed, not wait until after the 90 days. You would then have had 90 days to sort something out with the LL. This is another flaw in the deposit scheme. You should write to them and ask for an explanation of why the deposit protection has ended.

2. The LPA receiver should have asked for and collected the deposit from the LL as part of their management of the property, or at least ensured that protection was still in place. However, I suspect the LPA-R have no clue about the issues of the deposit protection anyway, and so did not take the steps necessary to secure it. Ignorance is not an excuse though!!

Conclusions:

1. Mydeposits have a case to answer for not informing you that the deposit was at risk. Big loophole there that needs plugging.

2. The deposit is still being held by the LL and you will need to issue a court claim to get it back. Whilst you may win, the LL may not have the readies to pay it back - hence the receivership!!

3. The LPA-R has been negligent, and I believe you have a case against them for not ensuring the deposit was secure or in a Client Account.

4. I think there is merit in a joint liability case LL and LPA-R.

5. You are not likely to get any of that money back unless you fight your corner hard.

havensRus
10-11-2009, 14:20 PM
I'd be tempted to hold back the last x months rent to cover the deposit in this situation.

I will not advise doing that without first informing the LPA-R or giving them a chance to resolve the matter. Else the OP will find themselves being evicted for non-payment of rent. The LPA-R will not be merciful....

havensRus
10-11-2009, 14:24 PM
I honestly don't know how each of the schemes operate, as my letting agent handles my tenants' deposits. Perhaps LL was indeed obliged to pay an annual fee, failing which the protection was cancelled.


Yes, an annual membership fee is required. The scheme can cancel membership if this is not received (Rule A2.1, A2.2 and A3.1.1)



It also seems counter-intuitive to the purpose of the schemes, (i.e. to protect the deposit against LL or agent disappearing with the money etc), if protection can be cancelled at the drop of a hat.

It is a major flaw that a scheme that is designed to protect the T's money, actually fails to do so in this case.
But its like any insurance scheme, non payment of premiums means insurance is cancelled. Or falling foul of one rule or the other. I suspect in this case, its a combination of receivership and non-renewal of membership.

SE1 Tenant
10-11-2009, 14:38 PM
Again, what incredibly helpful these comments are. Thanks you so much!

A few more clarifying points/questions:

- To my knowledge I belive that the origional LL is still in business and defaulted on a select few of their morgages, incl the flat I rent is financed with. That's the impression I have but don't know for sure (website still up and running, people answer when I call office etc)

- Mydeposit.co.uk did indeed inform me when the LL were "no longer Member of this Scheme" so I am still within the 90 day period (roughly a month and a half left).

I called mydesit.co.uk and asked for the reason of why my original LL was no longer a memeber, but there were not allowed to answer that.

She suggested, with the caveat that she cannot give legal advice off course that:

1) Write to my landlord and ask for the deposit being reprotected or returned within 10 days,

2) if that doesn't happen use mydeposit.co.uk's claim procedure

How does that sound? Is there any point/can I use mydeposit.co.uk's claim procedure even if I still live in the flat (ableit pay rent to LPA Receiver)?

westminster
10-11-2009, 14:51 PM
It is a major flaw that a scheme that is designed to protect the T's money, actually fails to do so in this case.
But its like any insurance scheme, non payment of premiums means insurance is cancelled. Or falling foul of one rule or the other. I suspect in this case, its a combination of receivership and non-renewal of membership.

It's also very different to commercial insurance insofar as the deposit schemes are, I believe, not-for-profit, and exist purely to protect deposits against failures by LLs/agents. What on earth is the point if the deposit is only protected so long as LLs dutifully pay their annual fee, or don't go bankrupt etc - doesn't protect against 'bad' LLs, the very thing it's meant to protect against.

It should be the case that, once a deposit is protected, it stays protected regardless of LL's failings.

I note that rule A3.1.3 says that members are forbidden from unprotecting a protected deposit without the knowledge or agreement of the tenant - yet it's okay for mydeposits to do this?! Further irony in the fact that the consequence of breaching rule A3.1.3 is...cancelling membership, thereby cancelling the deposit protection.

westminster
10-11-2009, 15:00 PM
- Mydeposit.co.uk did indeed inform me when the LL were "no longer Member of this Scheme" so I am still within the 90 day period (roughly a month and a half left).
Meaning the deposit is still protected after all - ?


1) Write to my landlord and ask for the deposit being reprotected or returned within 10 days,

2) if that doesn't happen use mydeposit.co.uk's claim procedure

How does that sound? Is there any point/can I use mydeposit.co.uk's claim procedure even if I still live in the flat (ableit pay rent to LPA Receiver)?

I would follow this advice, and fast, before the protection expires. I think you could argue that tenancy with original LL has ended (assuming you can produce letter from LPA-R stating they are the new LL). Definitely worth a go - LL will have to lodge the disputed sum with mydeposits when you raise a dispute (failing which the scheme is meant to pay you). Send letter to LL first class, keep a copy, and get a free certificate of postage as proof of delivery.

SE1 Tenant
10-11-2009, 15:03 PM
Great. Thanks.

Is email not good enough? Even with a "delivery recepit"?

Poppy
10-11-2009, 15:23 PM
In my opinion emails are naff when dealing with important matters - especially matters that may lead to court proceedings. Write a letter, sign it, copy it, post it to your landlord by special delivery, keep the receipt.

Emails have a habit of being ignored or accidentally deleted. Your landlord cannot ignore a special delivery and you can absolutely prove its service.

westminster
10-11-2009, 15:24 PM
Great. Thanks.

Is email not good enough? Even with a "delivery recepit"?
Probably. But do both to be on the safe side, i.e. email and letter.

havensRus
10-11-2009, 15:24 PM
Great. Thanks.

Is email not good enough? Even with a "delivery recepit"?

NO. Do it in writing. Service of notices is done in writing, to LL's address.

havensRus
10-11-2009, 15:31 PM
SE1 Tenant, as a matter of interest, could you post up the content of the letter from mydeposit informing you the deposit protection had expired? I'm curious.

jeffrey
10-11-2009, 15:41 PM
It should be the case that, once a deposit is protected, it stays protected regardless of LL's failings.

I note that rule A3.1.3 says that members are forbidden from unprotecting a protected deposit without the knowledge or agreement of the tenant - yet it's okay for mydeposits to do this?! Further irony in the fact that the consequence of breaching rule A3.1.3 is...cancelling membership, thereby cancelling the deposit protection.
I agree. What happened here is L's estate passing to control of Receiver R. Note that legal title does not pass to R; does this make a difference?

If one considers similar situations (e.g. L dies so PRs gain legal title; or L transfers to self + spouse), Deposit Protection rules should not simply be disapplied. Why does L's mortgagee's appointment of R affect it, just because R is not an acknowledged customer of the Scheme concerned?

SE1 Tenant
10-11-2009, 15:55 PM
Just came back from the postoffice. Sent a paper version of the email on a tomorrow guaranteed delivery tracking/recorded service. As someone said, to be on the safe side.

This is the wording of the mydeposit.co.uk letter:

"It is a requirment of the Housing Act 2004 that we write to inform you that your landlord, XYC Ltd, is no longer a Member of This Scheme.

As a consequence, the deposit held by them on your behalf will cease to be protected by this Scheme 90 days from the cancellation date, DD MM YY."


Some more blab on on the leagal obligation of LLs and then:

"If you need to raise a Deposit Dispute with mydeposit you should contact us immediately. Please not that we will ONLY accept disputes if:

- Your tenancy has FORMALLY come to an end and;

- The formal end date of your tenancy agreement is BEFORE the date we cease protection of you deposit (see above date)."

I guess it could be questioned if my tenancy FORMALLY has come to an end given that I am in a Periodic Tenancy now. But lady at mydeposit said I could use their claim process if LL fail to renew protection also. What a minefiled this is....... Really, when, is this buy-to-let debacle and its bizarre consequences in the UK come to an end and some decent, fair and workable protection for all parties be introduced??!!! It needs a major overhaul but I'm not holding my breath.

If I am still unsucessful in getting the original LL to renew protection or pay back the deposit, could I direct my claim, through the County Court, to the LPA Receiver instead?

havensRus
10-11-2009, 16:01 PM
If one considers similar situations (e.g. L dies so PRs gain legal title; or L transfers to self + spouse), Deposit Protection rules should not simply be disapplied. Why does L's mortgagee's appointment of R affect it, just because R is not an acknowledged customer of the Scheme concerned?

That's the Mydeposits' rule:


A3 Cancellation of Membership by us
A3.1.5 You have a Court Judgement registered against you or any petition to wind up is presented or a
liquidator, receiver, administrator, administrative receiver, manager, trustee in bankruptcy or similar
officer is appointed or you cease to carry on business under the name registered as Member


Whether or not it makes sense is another matter entirely.

I've just noticed that the scheme states that if they decide to cancel or not renew then:



A3.2.1 We will serve a 14 day written notice of intended cancellation stating the cancellation reasons.
A3.2.2 Within the 14 days of the date of the notice in A3.2.1 you may give us reasons (in writing) as to why Membership should not be cancelled. During this period you will not be able to protect or unprotect any deposits.
A3.2.3 At the end of 14 days in A3.2.1 we will write to you giving you notice of our decision as to whether your Membership has been cancelled.
A3.2.4 Notwithstanding the notice in A3.2.3 Deposits will remain protected in accordance with A5.1.
A3.2.5 Written notices will be given by us following the cancellation in A3.2.3 to your Tenant(s) (and Landlord Client(s) if you are an Agent) informing them that their Deposits will cease to be protected after a maximum of 90 days from the date of the notice under A3.2.3.



whereas if the LL cancels the membership:


A4.2 We may, following your notice under A4.1, write to your Tenant(s) (and Landlord Client(s) if you are an Agent)
advising them that you have cancelled your Membership.
A4.3 If there are any outstanding or ongoing Deposit Disputes at the time of cancellation you agree to comply with our reasonable instructions. The instruction may be made by us or the Adjudicator.
A4.4 You will not be entitled to any refund of Membership Fees or Deposit Protection Fees following Cancellation of your Membership in A4.1.
A4.5 Notwithstanding the notice under A4.1 your Protected Deposits will remain protected in accordance with A5.1.




Notice the emphasis on what they will do if they cancel - and what they may do if LL cancels membership.
As always, their decision is final, and there is no right of appeal!!

havensRus
10-11-2009, 16:09 PM
I guess it could be questioned if my tenancy FORMALLY has come to an end given that I am in a Periodic Tenancy now. But lady at mydeposit said I could use their claim process if LL fail to renew protection also. What a minefiled this is....... Really, when, is this buy-to-let debacle and its bizarre consequences in the UK come to an end and some decent, fair and workable protection for all parties be introduced??!!! It needs a major overhaul but I'm not holding my breath.

If I am still unsucessful in getting the original LL to renew protection or pay back the deposit, could I direct my claim, through the County Court, to the LPA Receiver instead?

Thanks for that.

Your tenancy has not formally ended simply because its in the statutory periodic phase. You have to have moved/vacated the property to say that it has ended.

What the scheme has not done is to make provision for reprotection of the deposit if they cancel the membership. Its obvious now that the cancellation was initiated by them, not the LL.

If the LL had initiated the cancellation, their rules say the LL must provide evidence that the deposit has been protected elsewhere. Which it obviously hasn't been.

Best wait for the outcome of your letter to the LL. If LL does not return the deposit or reprotect in another scheme, then raise the dispute.

The legislation/rules/implemenation of the deposit schemes is full of holes - worse than a sieve.

Yes, you could use the courts to reclaim the money, instead of via the scheme's arbitration service.

chappers2341
10-11-2009, 16:16 PM
This is a tricky one currently your LL is still your LL and the LPA recievers are technically his agents(although they have been appointed by the lender).

But due to the insolvency act your LL cannot protect your deposit, the deposit however is still in the hands of your LL to do has he sees fit.
You should have been issued with a warning notice that your deposit was about to become unprotected so you could take steps to claim it back.
The LPA recievers have never had your deposit and won't be responsible for it and probably won't be interested in having anything to do with it, as their prority will be to dispose of the property.
They wont care too much what state it is in when they sell it.

You say your deposit is still protected for another month and a half.
As you are on borrowed time anyway I would find somewhere else to live quick, give your months notice to the LPA reciever and ask for your deposit back from your LL, you then still have time to use the arbitration process should your LL try getting funny.

SE1 Tenant
10-11-2009, 16:17 PM
I'd still be really keen to hear if anyone could help me figure out if I end up filing a claim through the County Court, should I file it against:

- Original LL, that still holds the deposit or;

- LPA Receiver, who has accepted that tennancy agreement and collects rent?

There must be an answer on this. Or has it never been tested to what extent the LPA Receivers powers and obligations extends? To me it seems unreasonable if they can be given the power to accept/reject the original tenancy agreement (in my case they accepted it) collect rent and call themself "de-facto landlords" if they also can't be held accountable for the obligations related to the deposit (protect and pay back). Despite legal title hasn't transfered to LPA Receiver the still benefits from the cash-flows generated by the flat/property, thus should, in my view also be held accountable for the same obligations as the original/defaulted LL.

I suspect that this will end up in a situation where I have to go to the County Court, but I'm in a catch-22 situation here as I can't do that unless I know who to file that claim against.

havensRus
10-11-2009, 16:44 PM
I'd still be really keen to hear if anyone could help me figure out if I end up filing a claim through the County Court, should I file it against:

- Original LL, that still holds the deposit or;

- LPA Receiver, who has accepted that tennancy agreement and collects rent?



The LL, who is still the LL and holds the deposit.

chappers2341
10-11-2009, 16:53 PM
almost certainly as above.
It is the same as any tenacy through an agency the LL is ultimately responsible the agent is just that, his agent and in this case ,strange as it may seem, the LPAR is the LLs agent.

Just to add have you asked the LL for your deposit, your grounds for having it returned are that he is no longer able to protect it for you, as he is legally required to do.

SE1 Tenant
10-11-2009, 17:01 PM
The LL / agency situation is very different from the LL / LPA Receiver in my view, on the ground that ultimate benefactor of the cash flow generated by the flat/proterty (i.e. the rent) is now the LPA Receiver. This is not the case in a LL / agency situation.

Yes, I have asked the original LL to either 1) renew the protection or 2) pay me back the deposit. But, most likely none of those will happen knowing them.

So, then I'm back at the filing a claim through the County Court and reading all the contributors response above, and other sources I have reserached I cannot really say that there is an unambigous crystal clear picture to me quite yet. So, any new/more input on this is highly apprecited!!!!!

westminster
10-11-2009, 17:02 PM
But due to the insolvency act your LL cannot protect your deposit, the deposit however is still in the hands of your LL to do has he sees fit.

Very good point; even if LL wanted to protect the deposit, he's prevented from doing so. What a brilliant system! (not)

silvercar
10-11-2009, 17:14 PM
If the landlord is insolvent, would that make the tenant a creditor?

I owuld have thought that the tenant would not be able to demand return of the deposit whilst still resident in the property?

Just to add a point on mydeposits. They have been renewing membership free of charge, so they would not have been charging the landlord anything to continue protection of a deposit for a tenant whose contract has gone from AST fixed term to periodic. No payment for protection of deposit (as already protected under existing tenancy agreement) and no renewal of LL membership fee. So their removal of landlord's memebership is purely a policy decision or to protect themselves from the higher risk of insolvent LLs not returning deposits.

jeffrey
10-11-2009, 17:17 PM
If the landlord is insolvent, would that make the tenant a creditor?
Yes, but only an unsecured creditor.

havensRus
10-11-2009, 19:28 PM
Very good point; even if LL wanted to protect the deposit, he's prevented from doing so. What a brilliant system! (not)

Agreed about the "not". However, he could potentially use the DPS - if tenant is still in occupation, provided the DPS don't prevent him from doing so because he'd been barred by Mydeposits or was insolvent. I suppose if he couldn't reprotect elsewhere, he'd have to return it.- but if he is insolvent, he cant.

Hmmnn what a brilliant system indeed.... (not)

chappers2341
10-11-2009, 20:09 PM
The LL / agency situation is very different from the LL / LPA Receiver in my view, on the ground that ultimate benefactor of the cash flow generated by the flat/proterty (i.e. the rent) is now the LPA Receiver. This is not the case in a LL / agency situation.

!!

That is not the case the reciever has to apportion the income in a specific way set out in law, essentially first he has to pay the interest on the loan to the lender, then some other obligations followed by his own costs/fees(which are also set out in law) and if there is still a surplus the remainder back to the mortgagor/LL

My take on the deposit would be that as the LL cannot protect the deposit he cannot take/hold one so must return it to the tenant, after all the deposit ultimately belongs to the tenant

SE1 Tenant
12-11-2009, 15:13 PM
So, of the LPA Receiver has appointed an Managing Agent (which belongs to the same company as the LPA Receiver) is my counterparty when/if I file a county court claim for depsoit not being protected:

1) LPA Receiver;

2) Managing agent appointed by LPA Receiver;

3) Original Landlord (who holds deposit);

or

4) Any/all of the above?

I have read and read and read but I can still not quite figure this out.

Any info or advice that could shed light of this would be valuable and appreciated. Or if there is a solicitor/legal professional on here that would like talk in/advice private about that I am open for that also as I'm in a catch-22 situation if I can't figure this out as I have a very clear cut case but I don't know who to file the County Court claim against. I've tried a few solicitors but they have not been able to give me a straight answer either.

SE1 Tenant
12-11-2009, 15:41 PM
Another, eh, interesting twist to this is that as my deposit is not protected the LL or LPA-R can not notice me to leave as long as I pay my rent, right?

In that case the LPA-R can't sell the flat which ultimtely he/she is mandated to do to recover the mortgage for the mortgage lender/bank.

So, shouldn't really the LPA-R be responsible for the deposit, after all, as without being in control of, and if it gets unprotected, he/she can not fullfill his/her obligations.

SE1 Tenant
12-11-2009, 16:16 PM
Another thing, again, if now the LPA-R is really acting as an 'agent' to the LL they could still be held liable for the deposit (protecting and returning it) and accordingly I could direct my claim for protecting/returning the depsit and the 3 times deposit on the basis that they are just an 'agent' of the LL.

All according to 212 (9) (a):

(9) In this Chapter—

(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies, and

http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4-l1g212

SE1 Tenant
13-11-2009, 16:34 PM
More discussion and some additional interesting and relevant conclusions and information on this topic on this blog:

http://landlordlaw.blogspot.com/2009/11/another-tenancy-deposit-problem-what.html

westminster
13-11-2009, 18:24 PM
Another, eh, interesting twist to this is that as my deposit is not protected the LL or LPA-R can not notice me to leave as long as I pay my rent, right?

In that case the LPA-R can't sell the flat which ultimtely he/she is mandated to do to recover the mortgage for the mortgage lender/bank.


They couldn't use a s.21 notice seeking possession, but they could use Ground 2.

See http://www.bilberrybloom.com/citizens-advice/11/11050612.htm

westminster
13-11-2009, 18:27 PM
Another thing, again, if now the LPA-R is really acting as an 'agent' to the LL they could still be held liable for the deposit (protecting and returning it) and accordingly I could direct my claim for protecting/returning the depsit and the 3 times deposit on the basis that they are just an 'agent' of the LL.

All according to 212 (9) (a):

(9) In this Chapter—

(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies, and

http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4-l1g212

Yes, you can also claim against the LL's agent.

seelphed_vr
28-07-2010, 11:33 AM
What happened at the end in your case? I am in a similar escenario and i am doing a bit of research on the matter.

Did you pursue the receivers for the 3x deposit claim? what has happened since?

Any light you could shed on this will be greatly appreciated.