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hourkid
02-02-2008, 17:57 PM
I have a tenancy that started in late April 2007 and so my deposit should be protected. Neither the estate agency or landlord has since written to me stating in which scheme my deposit has been secured.

So my questions are:
1. assuming when I ask the agency that they say my deposit is secured, how do I know they are telling me the truth?
2. what can I ask for in terms of evidence to be sure that my deposit is secured if the agency says it is?
3. Is it possible that the deposit is not secured but that the agency can now put my deposit into a scheme in order to protect themselves/the landlord.

Thanks for reading ...

Ericthelobster
02-02-2008, 18:13 PM
Write to them explaining your concerns and asking for evidence that your deposit has indeed been protected - they are obliged to tell you which scheme has been used. If they aren't able to provide official paperwork, you simply contact the scheme yourself and ask for confirmation.

There are severe financial penalties in your favour if they haven't complied, so don't worry overly if they haven't done so. Read details in the recent thread here by a tenant who'd taking his former landlord to court over it.

hourkid
02-02-2008, 18:32 PM
Thank you for teh reply. I know that the DPS scheme automatically tells tenants that the deposit is protected. I can therefore assume that the deposit is not with the DPS (because they have not informed me) so it must be in an insurance scheme.

If the agency says it is in an insurance scheme, should that insurance scheme have the details of my tenancy? Or can the agency fudge it and just say 'it's protected, don't worry.'

Thanks ...

Beeber
02-02-2008, 18:49 PM
http://www.direct.gov.uk/en/TenancyDeposit/DG_066373

Ericthelobster
03-02-2008, 09:54 AM
If the agency says it is in an insurance scheme, should that insurance scheme have the details of my tenancy? Or can the agency fudge it and just say 'it's protected, don't worry.'Yes and no respectively.

For all the flaws and failings of the system, as it's intended to protect tenants against dodgy landlords, it does at least take cover the tenant against the possibility that a dodgy landlord might not actually tell the truth about whether the deposit is in a proper scheme.

Poppy35
03-02-2008, 10:03 AM
if its with the TDS (the insurance scheme most LA use) then you should receive a certificate confirming all dates, landlord and tenant details etc. we do ours on-line and a certificate is printed off, of which we send one to L, one to T and keep another on file.

So I would ask for the certificate as proof.

pcwilkins
04-02-2008, 09:07 AM
Another way to do it is to phone each of the three schemes and ask them if your deposit is registered with them. If not, get it in writing from each one and submit your claim to local county court --- you'll be awarded 3x deposit as penalty, in theory.

Peter

hourkid
04-02-2008, 13:11 PM
OK. Get this. I called all three schemes this morning and none of them had the deposit covered.

So I call the agency and ask for the certificate. They delay me for an hour and an half so I call back and ask for the certificate immediately. It then gets delivered to me by email.

So I call back TDS (who the deposit is now apparently covered by) and they now have the deposit protected. "Funny" I say, "it was not covered 2 hours ago." TDS responds: "That is because it was only covered today."

So basically, the deposit was not protected, the estate agency lied and is now covering its behind.

Any suggestions? Presumably the s21 they served me is no longer enforceable? And what about the 3x deposit fine?

jeffrey
04-02-2008, 13:16 PM
OK. Get this. I called all three schemes this morning and none of them had the deposit covered.

So I call the agency and ask for the certificate. They delay me for an hour and an half so I call back and ask for the certificate immediately. It then gets delivered to me by email.

So I call back TDS (who the deposit is now apparently covered by) and they now have the deposit protected. "Funny" I say, "it was not covered 2 hours ago." TDS responds: "That is because it was only covered today."

So basically, the deposit was not protected, the estate agency lied and is now covering its behind.

Any suggestions? Presumably the s21 they served me is no longer enforceable? And what about the 3x deposit fine?

See s.215(1) of Housing Act 2004:
"no s.21 Notice may be given...at a time when...the deposit is not being held in accordance with an approved scheme..."
So subsequent DPS compliance does not retrospectively validate the invalid s.21 Notice in your case; it remains invalid.

pcwilkins
04-02-2008, 13:24 PM
And what about the 3x deposit fine?

You should still be able to claim it, on the basis that the requirements of the scheme were not complied with within 14 days of the deposit being received. But you might be better off negotiating with the agent --- tell them you know what they've done and unless they do X, Y and Z you'll be claiming against them.

On the certificate you have, does it not give a date on which the deposit was protected?

Peter

hourkid
04-02-2008, 13:30 PM
The certificate says that it covers the period 28 April 2007 to 27 April 2008. The actual protection was put on the system this morning.

The agent is now saying they forgot and that they apologise.

If this progressed, does the agent pay 3x or is it the landlord? I actually like the landlord but the agency has just been problematic from the word go. I really don't like their attitude which is: "your tenancy is up in a few months. you have to tell us if you want to renwe the flat at 5% more than the current rate." Very aggressive and unnecessarily so ...

Any advice, moral or practical appreciated!!

pcwilkins
04-02-2008, 13:33 PM
If this progressed, does the agent pay 3x or is it the landlord?

If the agent should have protected it, I think it's down to the agent.

Morally we're in a similar situation --- the agent has not protected our deposit. I've decided that we'll wait to see whether they refund it in full, and if so we'll forget about it. I'm not convinced of the moral case for getting them in trouble before it's really caused me any problems.

On the other hand it could be argued why should they get away with it?

It's a tricky one.

Peter

jeffrey
04-02-2008, 13:38 PM
L is obliged to protect deposit. Agent is not. See s.213.

hourkid
04-02-2008, 13:39 PM
See s.215(1) of Housing Act 2004:
"no s.21 Notice may be given...at a time when...the deposit is not being held in accordance with an approved scheme..."
So subsequent DPS compliance does not retrospectively validate the invalid s.21 Notice in your case; it remains invalid.

So the current s21 is invalid. Will the agency just serve a new one on me that is valid?

jeffrey
04-02-2008, 14:01 PM
So the current s21 is invalid. Will the agency just serve a new one on me that is valid?
I don't know the future- but service of a replacement Notice would be the only way that L could gain s.21 rights against you.

pcwilkins
04-02-2008, 14:18 PM
L is obliged to protect deposit. Agent is not. See s.213.

Oh, ok. But presumably if LL has appointed LA to manage property and LA fails to protect, LL can then claim against LA if T claims against LL?

Peter

Ericthelobster
04-02-2008, 16:06 PM
you might be better off negotiating with the agent --- tell them you know what they've done and unless they do X, Y and Z you'll be claiming against them.Plus if you do put in a claim, it wouldn't be too surprising if you find yourself getting 2 months' notice to quit (for which no reason need be given). So you might first want to think about how badly you want to stay in the property, or at least delay putting in a claim until you do want to leave.

hourkid
04-02-2008, 16:36 PM
Your point is well made, thank you.

For anyone who cares, the agency in question still believes that the s21 they served is valid. Quote: "as it is not linked to the TDS".

The agency also believes that the 3x penalty does not apply as they have now protected the deposit.

If you are a landlord, I reckon you ought to check how your agency is dealing with deposits ... as it could get expensive ...

pcwilkins
04-02-2008, 16:45 PM
For anyone who cares, the agency in question still believes that the s21 they served is valid. Quote: "as it is not linked to the TDS".

They're bluffing. Send them the relevant legislation and see what they say.


The agency also believes that the 3x penalty does not apply as they have now protected the deposit.

Another bluff.

Peter

jeffrey
04-02-2008, 16:52 PM
But surely a reputable managing agency, run by efficient professionals, would never stoop so low? How astonishing.

Surrey
04-02-2008, 17:23 PM
Oh, ok. But presumably if LL has appointed LA to manage property and LA fails to protect, LL can then claim against LA if T claims against LL?

Peter

That may well be the case, but it's irrelevant. The original poster should remove emotion from this and decide whether to pursue the landlord for the compensation and dispute the S21 notice. If it turns out the landlord could claim loss against the agent that's a completely separate dispute and nothing to do with the tenant.

hourkid
04-02-2008, 17:39 PM
But surely a reputable managing agency, run by efficient professionals, would never stoop so low? How astonishing.

He know's his job right as he's been doing it for years ...! He must be right because he told me so, quite vociferously. Despite being pointed to the document that he'd sent me which stated that you can't regain possession of the property using notice-ony grounds.

Seems like a minefield this deposit scheme and a little knowledge (or just little knowledge) can be dangerous.

Thanks for all your comments folks.

jeffrey
04-02-2008, 17:46 PM
He knows his job right as he's been doing it for years ...! He must be right because he told me so, quite vociferously.

Well, of course that proves it. How dare the law tell him any differently!

pcwilkins
05-02-2008, 08:34 AM
But surely a reputable managing agency, run by efficient professionals, would never stoop so low?

No, it wouldn't. But unfortunately finding such an agency is about as easy as finding a piece of hay in a huge pile of needles.

Peter