Irregularities with TDS certificate

[Grid66]

In response to taking an agent to court for the non-protection of my deposit, he has sent a tenancy deposit certificate. The TDS case is still going ahead but there are irregularities with the information on the certicate.

 

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Some background info first

 

The agent has closed his offices, and does not answer letters or calls.

His deception has been well publicised in the media since November 2007, with numerous complaints from landlords not being paid and tenants not receiving their deposits back. The agent has now started trading under a different name and has stated in the media that the 'new' company has not taken on any debt or properties from the old one.

 

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Info about the certificate.

 

The certificate states the period of protection starting in March 2008.

The tenancy started in June 2007, corectly stated on the certificate.

The certificate correctly states the date deposit was taken in June 2007.

The section titled 'Landlord\Agent' alongside which these details appear has neither Landlord or Agent crossed out.

The Landlords name is correctly stated.

The address is stated c/o the agents new company

The address is the residential address of the agent, not his registered address of the old company.

Where the agent signed the certificate he had crossed out 'Landlord' i.e. he signed this as agent.

I requested a duplicate from TDSL which corresponds to the one sent by the agent.

 

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I have contacted the landlords who have told me that they never have or never will have any contract with the agents new company, he still owes them money.

 

They also provided me with a copy of a letter from TDSL informing them that the agents old company registration was cancelled in February 2008.

It is my belief that this unscrupulous agent has worked around this by registering his new company and getting this certificate issued with dodgy details i.e. landlords name with his new company name and his residential address, then issuing the certificate to me for the existing tenancy.

 

I assume that this certifcate is worthless as the tenancy was between my landlord and myself with the agents old company as the agency.

What I do want to know is what I can do about this? Has he committed fraud by stating incorrect details for the landlords address and\or is this sort of deception not punishable in some way?

 

Lastly, the TDSL website (mydeposits.co.uk) publishes rules for Agents. It specifically states that an agent must protect a deposit within 14 days of receving a deposit (point B1.1. in their rules for agents document http://www.mydeposits.co.uk/pdf/TDS_Scheme_Rules_for_Agents.pdf).

So why have they allowed this 'protection' starting March 2008 when the tenancy start date and deposit receipt date is clearly stated as June 2007?

[MrShed]

Are you suing the agent or the landlord? What does the tenancy agreement say about the holding of the deposit - is it as landlords agent, or as stakeholder?

 

With regards the TDS specifically, your point is correct - 14 days is the timescale. As far as I know, non-compliance with the timescale is treated the same as non-compliance with TDS as a whole, and you become automatically entitled to 3 times the deposit as compensation. Would like confirmation of this from someone else first though!

[Grid66]

Mr Shed, thank you for the speedy reply.

 

I have presented the certifcate as evidence of non-compliance with regards to the timescales.

The case is against the agent and was started before any of the cases already heard had been concluded. At this point I'm still not clear whether the case will be lost on the grounds that it should be against the agent but I have included a statement from the landlords that the agent still holds the deposit. Additionally the TDSL rules state that the agent, when they hold a deposit on behalf of landlord must, on registering that deposit, provide proof that it is being held in a 'ring-fenced' account.

 

The court case aside, this issue raises some questions about the procedures involved in registering these protections. I find the wording of the certificate inappropriate considering the Act.

They state the period of protection on the certifcate (a start and end date) but and date deposit was collected, but they they do not explicitly state the date the protection was registered. The question is whether the period start date is co-incindent with (and reflects) the date the protection was registered?

[MrShed]

Mr Shed, thank you for the speedy reply.

 

No worries

 

I have presented the certifcate as evidence of non-compliance with regards to the timescales.

The case is against the agent and was started before any of the cases already heard had been concluded. At this point I'm still not clear whether the case will be lost on the grounds that it should be against the agent but I have included a statement from the landlords that the agent still holds the deposit. Additionally the TDSL rules state that the agent, when they hold a deposit on behalf of landlord must, on registering that deposit, provide proof that it is being held in a 'ring-fenced' account.

 

Fair enough, as long as you are aware of the complications with suing the agent rather than the landlord. Also, be aware that the statement from the landlord does NOT change the situation at all - ultimately the landlord is responsible for the return of the deposit, not the agent. The stakeholder/landlords agent question is key with deciding whether the agent can potentially be held legally responsible.

 

The court case aside, this issue raises some questions about the procedures involved in registering these protections. I find the wording of the certificate inappropriate considering the Act.

They state the period of protection on the certifcate (a start and end date) but and date deposit was collected, but they they do not explicitly state the date the protection was registered. The question is whether the period start date is co-incindent with (and reflects) the date the protection was registered?

 

I think you are overthinking this somewhat. The tenant needs to receive notification within 14 days of having the deposit taken. Period. Date of protection, registration etc etc is totally irrelevant, as long as the deposit is placed in a valid scheme and the tenant receives the prescribed information within this timescale.

[Grid66]

Mr Shed,

 

Point taken regarding the dates.

 

It has now becoming a matter of principle so I'll be following through with the case, regardless of the outcome. I don't believe I'll see a penny of this deposit from the Agent, a publicised ruling that was made against him has resulted in money not been 'recovereable' from him, or so it has been reported in teh media by a debt collector who was employed by the claimant.

I believe other debtors are filing for insolvency against this agent.

 

I think I will point these discrepancies out to the TDSL in the hope that it won't allow him to pull the wool over other tenants eyes.

[MrShed]

No problem - its very easy sometimes to get embroiled in the minor details, when often it can be irrelevant!

 

Out of interest, have you actually received the deposit itself back yet? I would have thought it would actually be easier for you to retrieve this now that it is in fact with a TDS?

 

I wish you the best of luck with it anyway

[Grid66]

No the tenancy ends later this month, 3 days after the hearing actually. This in itself has complications as the landlord wants to retain us as tenants through a 1-to-1 tenancy agreement. Ultimately I can still initiate recovery of the deposit from the landlords but this will jepordise our tenancy and good standing with them and we can't afford to go elsewhere to rent at this point in time.

 

I have just had another look at the certificate, the 'stakeholder' is blank, so for all intents and purposes it is protected by the landlords from March, regardless of the dodgy address details given by the agent.

[MrShed]

Ah....that would make sense, sorry didnt realise you were still resident in the property.

 

IMO in that case, should there still be an issue, you have one of two options in order to maintain the good relationship with your landlord:

 

- Sue the landlord, BUT make clear to him that you are only doing so because he is legally responsible. He can then recripicolly(sorry, cant spell that word!) sue the agent for breach of terms and should be awarded his actual financial loss(i.e.the deposit and any compensation).

- Sue the landlord after you eventually leave the property

 

This all assuming that yourcase against the agent falls through...which I suspect it will, although hope it doesnt.

[Grid66]

Mr Shed,

 

I still have to consider how this current tenancy is going to end considering that a private company did the inventory, and surprise surprise no longer delas with the agent, faults that we reported to the agent didn't get notified to the landlord, landlords verbal agreement to reparations etc etc. Also whether the landlord is expecting a new deposit for this new tenancy, that would make things even more complicated. I think this is probably a new thread in it's own right.

 

I have a few days left to discontinue the case and get the fees back (much needed at this time) but on principle I will at least try and get the deposit back. I have thought about both the options you suggested and have yet to decide which is appropriate.

[MrShed]

Lol...certainly a difficult situation!! I guess the decision of whether to continue depends on whether you want to pursue a possible compensationary claim (ie 3 x deposit), or if you just want to get the deposit back. Should it be the latter, then you may as well discontinue the case.

 

The way I look at it, is that principles are all well and good, but they are also for people with no real world worries(such as financial and time constraints)! My opinion would be to continue in the way best for YOU, not the way worst for the letting agents, if that makes sense.

 

Finally, you should not need to give a new deposit for the "new" tenancy, as it would be a statutory periodic tenancy, and is merely a continuation of the former tenancy, as opposed to a genuinely new tenancy.

[Grid66]

I must provide some stability for my family as a move from this landlord would make a rental agreement of any sorts impossible (previous bad credit history on my part although I have never defaulted on any rental payment to date).

 

On principle yes, I'd like my deposit back and goodness knows how far a compensation will help in difficult times. That said the landlords have been very helpful and this &^%$%$£ still owes them rental income. They are very good people and we have a very good relationship with them, any decision to pursue it from them will be very diffcult to follow through with.

You have touched on two very real conflicting aspects, my desire to get this agent back vs the money aspect. I think it may well be prudent to ignore my vindictive side and concentrate, as you say, on what's important for me and my family at this point.

 

Many thanks Mr Shed, good points and all round good advice, 'legally' and otherwise.

Edited June 7, 2008 by Grid66