Deposit Not Protected...Is it Landlord or Agent...Landlord now wants us to take legal action with him against agent...

[Scootagal]

Hi

 

I'm at my wits end...can someone let me know what they think of my situation...

 

We rented through an agent and initially asked about tenancy deposit scheme and the landlord said he wasn’t going to do it as my partner (only him not me) had signed a form saying he was happy for landlord to keep deposit with solicitors….

I explained that at the time he didn’t know about tenancy deposit scheme and that I didn’t want to sign it as we wanted the deposit protecting.

The landlord had already threatened to make us leave when we first questioned it but we had moved all our stuff in from our old house and I was really stressed so then contacted the agents who said that they would protect the deposit (but they were pretty rubbish and I didnt believe them.) We have not had any protection information from landlord or agent.

Then last (we've been in the property since end of November) Friday the landlord rang to say he would be sending me something about the deposit as the agents were meant to have protected the deposit, but they hadn’t so he was sending us a letter saying that we would along with our landlord (him) would be taking legal action against the agents and that we want our deposit paid to landlords solicitors along with any legal costs – and we are meant to sign this and send it back to the landlord….

I don't know whether we should sign this or not - on one hand it sounds like he's concerned about the deposit (it's £2400) but on the other hand I don't know if we want to get involved in a legal battle even if it is about our deposit - shouldn't it be us vs the landlord for the deposit??

I feel sick as I know he has a temper and will be angry no matter what we say we're going to do...

Any advice gratefully received...

 

[help me kick his butt]

Hiya, welcome to the forum.

It is plain to see that the Landlord is worried that he will be sued for the 3 x penalty( you may or may not know about this?)

I would be very tempted to fill out form N208 at get it to the court very quickly, fee £150.

It is a legal requirement for your LL to protect the deposit, you cant choose to opt out of this.There is a TDS that allows your LL to keep the money, if he wanted to , he should have used that one.

I absolutly would not sign the paperwork that your LL has given you.

If you sue the LL for the deposit and x3 penalty, he then, in turn, can sue the agent for it, in certain circumstances.

Please post back with any more questions xxx

[help me kick his butt]

Just wanted to add, it is the responsibility of the LL to make sure the deposit is protected, ultimatley.

[Scootagal]

Thank you! I have since made an appointment to speak to a lawyer...at a cost of £120 for an hour...am hoping they tell me something I don't know!!

 

Or maybe I should cancel it...I have no idea...am just so stressed

 

The horrible thing is that I know about the 3x fee...but not sure if we have right to it if my partner signed a page saying he was happy that it would sit in the LL's account...

 

Also - I'm worried the landlord would turn nasty if we filed this report...not sure what he could do - but I know they have keys etc...

 

I've just looked up that form by googling it....is it just a really simple form with big spaces...looks very non-specific?? Or am I looking at the wrong thing??

 

Sorry for all the q's

[help me kick his butt]

No problem, yes form CPR8 is a simple one to fill in, sounds like you have looked at the correct one.

In my opinion, if the LL has piece of paper saying that you gave permission for him to hold your deposit, I dont see how he can then consider suing the agent. On those grounds I would sue him. As i said, it is a legal requirement as of April 2007.Chat to a Lawyer about it. Ask for a free Half hour.

Try not to get too stressed out love, the procedure is not difficult.

If the LL enters your house without 24 hours notice, and your permission , he is breaching your tenancy agreement.

Edited February 9, 2009 by help me kick his butt

[Scootagal]

Thanks I really don't know what to do...if we tried taking the LL to court - do we have to tell him we're filling in and sending the form?? I think I could just about cope with this if he wasn't so overbearing and self-assured...makes me wonder whether we're right or wrong no matter what is said

[help me kick his butt]

Shame, some people are like that.

It really is your decision, but he will only know you have done this when he is served his papers from the court.

You have to weigh up if it is worth living in fear of this man? xxx

Lets see how self assured he is when he has to part with £7200 and protect your deposit.

Loads of luck and keep us posted x

[misselle]

I wouldnt sign anything like HMKHB say's its a legal requirement to protect the deposit and you can't opt out of it, my landlord used the same excuse on me and then various other excuses and we applied to take him to court for the 3x the amount, and he agreed to give us it all as a out of court settlement.

 

I would ask yourself what reason the landlord had in the first place for not wanting to protect the deposit?

[Scootagal]

Hi

 

The landlord is saying that the agent was meant to protect the deposit and I have seen that in some cases - this is actually the case if that's what has been agreed between the landlord and the agent...

 

So he's saying it's the agent's fault for not protecting the deposit...and that the agents must be using the money for their own cashflow...

 

Now I don't know whether it is the landlord who is at fault or not...or whether to sign the letter.

 

They re-confirmed the letter was to the agent and said that we wanted to know where our deposit was being held and if they couldn't prove where it was then we wanted the money sent to our landlords solicitors and then it would be held with them.

 

I did ask why it couldn't be in a deposit scheme once it came back from the agents, but he said that as he only had one property he was too small to register for a deposit scheme...I did say that our friends have rented out their house - and they've only got one! But he then said that we should get the money off the agents first - then sort out where it goes...

 

Now I don't know what to do in terms of whether to sign or not as if it is the agents fault...or is it the landlord...or if he has agreed that agent will do it....

 

Getting a headache

 

[misselle]

Could you go directly to the agent and ask them what has happend with your deposit?

 

I am pretty sure that even if there is an agrement betweent he LA/LL that the onus is still on the LL to protect the deposit.

 

What your landlord has said about being to small for TDS is utter crap, he is required by law to protect your deposit and if he doesnt then he is opening up himself to being sued for 3x the amount of the deposit perhaps mentioning this to him might encourage him to place it in a scheme. I would get in touch with the LA directly straight away to find out what their side of the storys is.

[Scootagal]

When I spoke to the agent on Friday, the Landlord told me he didn't want me to speak to the LA....

 

Today when I questioned it - he said I was being awkward and not one of his other tenants (I am a tenant of his brother who only has one flat which he used to live in - the brother has around 20 flats I believe) had questioned it in the way I have...and that he wasn't sure he wanted to represent me...

 

So am I shooting myself in the foot by doing everything directly??

[misselle]

I wouldnt deal with the LL something doesnt seem right to me about how he is acting.

 

If you took the LA/LL to court for not protecting the deposit it is a simple process so you would represent yourself and wouldnt need a lawyer or the LL.

 

I would question why the LL is being so defensive at the end of the day the deposit is your money and not his therfore you have a right to question both the LL and LA as to the deposit and he has no right getting stropy about it.

[help me kick his butt]

At the end of the day it is your decision whether to sue or not. If the LL sues the LA with your help then maybe you could come to some kind of agreement. You cant be 100% sure that the LL is not pulling the wool over your eyes and trying to get the 3 x penalty for himself, unlikely and cunning but...................

If you just want a peaceful life, state to your LL that it is not your business to sign anything, your only concern is that your deposit is protected. Your LL has no right to hold you over a barrell like this.

The fact that he has said no one else has questioned him on this is of no relivence. The LL has a legal obligation to protect your deposit but as things stand, you dont know where your deposit is.

So, to close, your options are to sue LL/LA as co defendant, for the 3 x penalty and insist your deposit is protected.

Or, tell your LL you want nothing to do with it but you insist that your deposit is protected ASAP or you will submit form N208.

Dont be bullied by this thug. Your deposit should have been protected. x

[Scootagal]

Just got the letter and docs from the landlord...and thought I would ring the LA to see what they had to say.

 

What a surprise - they say the landlord was rubbish - landlord says agency were rubbish - both apparantly sacked each other depending on who you speak to.

 

So I ask the LA where is my deposit - and they say - much to my relief - it's protected - and I said - where's my proof then? They say - oh we can email it to you...

 

Oh great - can you email it straight away? No - it might not be today....

 

Hmm - why not? I really really need it - as if I can see it has been protected then I can ignore stuff from the landlord...

 

Sorry - our admin department has a heavy workload...

 

Oh please send today??

 

No....might not be today - can't do anything - it's protected by mydeposit.co.uk - go look there.

 

Ok - so I go look there - and search for our deposit and nothing comes up...so I ring them....nothing comes up for our address....

 

So ring agent back and say this and he says it must be a mistake and they will send the certificate...

 

So now I have no idea who or what to believe - maybe the landlords right but I don't want to sign something that says we'll take legal action against the agent alongside the landlord....

 

If the agent do send a certificate that's from back in November - I can just show this to the landlord and all is ok....but I doubt this will happen....

 

If they set it up now - what do we do? It's protected but hasn't been protected soon enough....??

 

Why is nothing ever simple???

[help me kick his butt]

My thoughts on this are that they have not protected the deposit, but are hurrying to do so now.

If it is protected before the case comes to court it is very unlikely you will win the penalty x3.

However, I dont particularly feel that you are too concerned about getting the 3 x penalty. You just want to know your deposit is safe, right?

Once you know your deposit is protected, I would let LL and LA fight it out between theirselves,

I would be looking for alternative properties at the end of this tenancy aswell. Seems neither can be trusted.

Do keep us informed x

Edited February 10, 2009 by help me kick his butt

[Scootagal]

Not entirely sure what we want...if we do file a claim where do we do it as the claim would be for £7200 (3x our £2400 deposit) - and is that all we claim for or do we add the deposit to that??

 

(Sorry - thanks for all the advice btw!)

[Scootagal]

Sorry - I meant that it would be more than £5000...and I read somewhere else that it's only for up to that amount...and can it be done online??

[Scootagal]

Oh dear...well I've jumped the gun and done it now and hope I've done it right....used moneyclaim website and filled in details...cost £210 in the end....hope it's the right thing?!!?

[help me kick his butt]

EEEK, not the best way to do it. Should use form N208.

Small claims court has a maximum of £5000, best to go for that as you could end up with LL's costs.

Off i go to do my school run leaving you with Im not sure what to do, come back in to Ive done it lol

 

In your case you will be claiming for 3 x deposit plus to have your deposit protected until your tenancy ends.

[Scootagal]

I've withdrawn the claim...as had made a mistake...the landlord has now just rang and said did I get the paperwork...I said yes but wasnt signing - he said fine...and put the phone down....then he rang again and said did I mention it to the agents - I hadn't specifically mentioned it to them but it's obvious he didn't want me to mention it....I sort of maybe did....now I'm feeling a bit ill....am going to fill in the N208 form (incidentally I queried which form to fill in with the courts and they said N1....?!?!) and take it in person tomorrow...

 

God it gets worse as every minute goes on

[Scootagal]

Sorry...incidentally - if your claim is over £5000 - who would it go to? And would it be a N208 still??

 

Sorry - I feel like I'm asking a million questions - if I could send everyone cakes from the lovely bakery opposite my flat I would!!

[help me kick his butt]

Right, deep breath Mrs.

Firstly, the courts advice on HMCS website tells you to use form N208, Part 8 CPR. This is £150 to file.

I should imagine that as your case is not a simple one the judge will move it to track. You will have to fill out an allocation questionaire, cost of £35 then the court will send you a hearing date. You then pay £300 for the hearing. Im not telling you this to frighten you, but I do beleive its good for you to know the process and how much it will cost you to carry this through.

Now, lets go back a step or two.

If you decide to still go ahead with this, you need to fill out N208, I can help you do this or there are plenty of stickies on this.

Alot of LL's settle out of court before you have to pay for the hearing fee, so dont panic about that £300 just yet.

Sweet about the cakes, i remember feeling that way when other forum members helped me, thats why I spend so much time on here now, if I can help someone else, it feels like pay back for all the others that helpeed me.

Planner is particularly good on this subject.

PS have a good read of my thread, it should help quite a bit

[help me kick his butt]

Something very important to bare in mind, you really ought to send an LBA, letter before action, giving the LL 14 days to pay your deposit into a scheme or you will be suing for the 3 x penalty.

I know under your circumstances this might be awkward for you as your LL sounds like a bit of a thug.

I did not know anything about a LBA when I started my claim so I did not send one.

If your case went to court, you could tell the judge if a lack of LBA was bought up, that you were frightened of your LL so did not want to do this.

The otherthing that can happen if you send LBA then the LL subsequently protects deposit. In court the judge is very unlikely to award 3 x penalty then.

[Scootagal]

Oh I've not done anything now...am waiting to see if Agents send proof of deposit being protected...although just chased them up as they said they would email it....(despite moneydeposits.co.uk who they claimed to have used having no record of my deposit being registered...).

 

In terms of the extra fees etc...it is a bit daunting...so hoping that we get a certificate / proof that everything is in place!!

 

But if we don't...I'm getting confused now...as I just read on another old thread that if the agent has been instructed to hold the deposit, then it is them we should be looking to claim against...not the landlord...

 

Then another horrible thought was suggested to me...what if the letting agents go broke - and take the deposit with them!?

 

Oh if there isn't a problem I'm imagining one!!!

[Scootagal]

Sorry - should have mentioned that our tenancy agreement says that the deposit is to be held with the letting agent, but then the landlord (with the dodgy letter he wanted us to sign) also sent a copy of an email showing their account with the agent saying that the deposit was with the agent, but then asking his sister who also deals with their properties to contact the agent to get the deposit back as the agent weren't supposed to be holding the deposit...

 

This was from November about a week after we'd paid the deposit - so it does make me wonder why the landlord hasn't queried not having the deposit since then....

 

Although I did query with the agent as to the landlord not protecting the deposit - and can't remember what date this was - as it might have been agreed that they did keep it...but we never had it confirmed...

 

Off to have a headache...