Can Letting agent refuse to return deposit if Landlord and Tenant request it

[marianne jones]

I hope that someone can help me.

Can an agent legally withhold a deposit in a dps scheme when both the landlord and the tenant have written asking for it to be returned in full to the tenant? In this case the term of the assured tenancy has ended but I am holding over.

Thanks if anyone can help.

M.

[Paul_f]

TDS only applies to ASTs and not to Assured Tenancies. What do you mean when you say you are holding over? Are you T or L?

[Lawcruncher]

On whatever basis the agent holds the deposit and whether or not the tenancy is an AST, if both landlord and tenant request its release to the tenant there can be no justification for the agent keeping it.

[jeffrey]

TDS only applies to ASTs and not to Assured Tenancies*. What do you mean when you say you are holding over? Are you T or L?
*- As an AST is one type of Assured Tenancy, you meant to refer to the other type: an SAT (Standard Assured Tenancy).

[marianne jones]

Thanks for all your replies.

Sorry I didn't realise there were all those types. I meant I signed an assured shorthold tenancy. The 12 months of the tenancy is over and it is now month to month.

The agent is demanding evidence of vacation. Do I need to provide this if the landlord has written to the agent asking for the deposit to be given back?

[cymro123]

I am a bit confused - you are still living in the property (month to month) but the agent 'wants evidence of vacation'? I don't get it. If you are still in the property the tenancy has not finished.

[Lawcruncher]

The agent is a [insert word of your choice]. If the landlord has agreed the deposit should be released he must release it. It is irrelevant if the tenancy is continuing.

[marianne jones]

Cymru123 - the term of the tenancy agreement of 12 months is past and the tenancy is now on a month to month basis. The landlord has agreed to give the deposit back now as we now trust each other and the money can be freed up for me.

Thanks for help Lawcruncher - If this a legal fact, do you know if any legal reference.

[Paul_f]

If this a legal fact, do you know if any legal reference.An agent takes instructions from his client so must follow those instructions otherwise he would be in breach of contract - Law of Agency!

[dominic]

Also, agent does not have legal title to the money. It is either LL's or T's property (depending on what has been agreed in the TA).

[Lawcruncher]

Thanks for help Lawcruncher - If this a legal fact, do you know if any legal reference.

An agent has a choice whether or not he takes a deposit. If he chooses to take it it is the parties who decide in what capacity he holds it. If he holds it as "agent for the landlord" he must deal with it according to directions given to him by the landlord. If he holds it as "stakeholder" then he must hold on the terms agreed between the parties; in a sense his duty is to the deposit to ensure that at the appropriate time it goes where the parties agreed it should go. If the parties change the agreement between them then the agent must abide by the new agreement. If the new agreement is that the deposit should be paid to the tenant then the deposit should be paid to the tenant.

I expect the problem here is that the agent is confused, finding it difficult to believe that a landlord is willingly giving up the security of a deposit. I do not suppose it happens very often.

Rather than you quoting the law to the agent, turn it round and ask him to let you know what his authority is for retaining the deposit. Suggest to him he takes legal advice because, if the deposit is not returned within seven days, you will be instructing a solicitor to start proceedings to recover the deposit and you will be asking the court for your costs to be paid on the full indemnity basis as he has no defence.