End of tenancy - deposits #2

[Flitwick landlord]

I have a flat in Surrey that I rent out. It's been rented out for a number of years after I moved out and I always use an agent. I keep it regularly maintained and renovated and always have an inventory drawn up at the start of a tenancy and checked at the end of the tenancy.

In May last year I let it out to a couple for 6 months. After 4 months they gave notice but asked if they could extend their agreement on a month by month basis until they could move. I agreed but said if this lasted longer than 2 months they would have to sign a new agreement which would be backdated.

They did this for November and then stated they would be moving out on December 26th. This was agreed and I was able to find a new tenant to move in in early January. I was away for New year and got back on the 2nd Jan. When I contacted the agent I found that the tenants were still in there. Eventually after a bit of a struggle, the old tenant moved out in the nick of time and the new tenant moved in.

When I inspected the flat I noted that there were a lot of delapidations. Some were my responsibility but the majority were due to the tenants. They had even walked off with a couple of items - one of which was a dehumidifer!! All this was substantiated by the inventory clerk at check out.

I went and discussed it with the agent and asked them to contact the ex-tenant and inform them that all this would be held from their deposit. I was shocked with what the agent revealed: -

1) The tenants were DHSS and had not disclosed this until after the tenancy had started.
2) The tenants had been evicted from their previous tenancy (or at least the LL had refused to renew)
3) The tenants had been agressive - verging on abusive - to the agent
4) The tenants had defaulted on the rent for 2 months. One month the agent had paid it from the deposit and the second month the agent had paid me directly and claimed it back from the tenant (I believe).

I was shocked. :o The agent did not have my approval to pay the rent from the deposit and had insisted this was better than trying to get them evicted for rent arrears.

The tenants proportion of the delapidations was approx £700, rent was £800 and the deposit was £1,200.

The agent has written to them regarding the delapidations but with no response. The agent has not (yet) confirmed what has happened to the balance of the deposit.

I am debating what to do. Which of the following would people suggest?

1) Do nothing
2) Take the ex-tenant to SCC
3) Take the agent to SCC

I am reluctant to do 1) but also fee that 2 would not end with a result as they probably cant pay! Therefore 3 seems to be the only way to get any money but are they legally obliged?

All advise or feedback welcomed and sorry for the long post!!!

[MrShed]

I would do 3, on the basis that they have been negligent(both in communication and on referencing the tenants), and therefore claim your financial loss from them. It depends upon the written T&Cs of your contract with them however. 2 is on more solid legal ground, but as you say, difficult to get them to pay up!

[Nightmare4banks]

Fltwick landlord,I would just like to add to what Mr.Shed has stated:

1.The tenancy was clearly obtained by misrepresentation/fraud on part of the tenants and there was clear negligence on agent's side.

2.I agree with your agent that it would be better to deduct the rent from the deposit monies rather than evict on rent arrears.

3.You stated that there were some dilapidations - which were your responsibility - so be careful that these do not fall under breaches of the Landlord & Tenant Act on your part and thus potentially your claim could be "wiped out" on a counterclaim by the tenants should they opt to countersue you.

4.In conclusion sue the agent because if he/she had done the referencing and management properly you would have not be facing this problem now.

By the way,is this agent a member of one of the professional bodies? As this would be an alternative to using the court system and should not cost you anything.

I hope you find this information useful.

If you have any questions,feel free to ask.