Joint Tenancy and Deposit Protection - Help please!

[cariad mo brwydrwr]

Hi All. Further to my recent thread, I have queries regarding tenancy deposits in a joint tenancy. I hope that someone can help as having contacted the Deposit Protection Service, they do not seem to shed much light on the problem. The email sent below outlines the problems (apologies, it is rather long....)

 

Dear Sir/Madam,

 

Deposit Protection Under Joint Tenancy

 

I commenced a six month joint assured shorthold tenancy on 01/09/08 and paid a deposit of £397.50 to the letting agent, acting on behalf of the landlord. At the time I was unaware that my deposit should have been placed in a Tenancy Deposit Scheme.

 

Following the payment of my deposit, I received no further information from my Landlord as to whether my deposit had indeed been placed in a TDS and am now aware that I should have been supplied with notifiction to that effect within 14 days of my payment, as well as a certificate of protection with Deposit ID number, proving my deposit had been registered and protected. I have received nothing to date.

 

Further, I believe it is possible for a landlord to identify a lead tenant on the deposit submission form, who is then authorised to act on behalf of all joint tenants. I was not consulted about this at any stage, neither does my tenancy agreement state who the lead tenant is, if indeed there is one at all. Had I been given the option, I would have preferred my deposit to be held separately under my name, as per best practice. Even so, I am under the impression that if no lead tenant is nominated or agreed, then deposits should be registered either separately or under both tenant's names.

 

Having recently telephoned the Deposit Protection Service, I was informed that whilst there is a deposit registered at my address, it is not in my name and the DPS has no record of me at all. I am aware that a previous tenant lived at my address prior to me who's tenancy began in September 2007, however it would appear that when I moved in under a new tenancy agreement in September 2008, the DPS have not been notified of this; nor have they been notified of an increase in rent since the previous tenancy existed. Throughout the two tenancies, one tenant has remained at the property, however, as previously mentioned there have been two separate tenancy agreements involving other tenants. Therefore it would appear that the deposit is registered under this original tenant's name.

 

I am most concerned that my deposit has not been protected sufficiently, if at all. However, I am unsure as to the rules and regulations surrounding the TDS and joint tenancies and have the following queries:

 

• Should the landlord have notified you when one tenancy ended and another began - especially considering the change in rent and tenant?
   
  
• If the deposit is registered for my address under my fellow tenant's name, then do I have any right to reclaim any amount at all?
   
  

I am concerned that as the deposit is not registered in my name, that my fellow tenant may have the right to reclaim the full amount, leaving me with nothing.

 

I have now vacated the property with the tenancy agreement due to expire on the 28th Feb. It is imperative that I obtain clarification on this matter as soon as possible as I believe I will have no right to reclaim my deposit when the tenancy ends, following the final inspection.

 

Apologies for the lengthy email, however I am sure you can understand my considerable unease. I would be grateful if DPS could get in touch, in response to the above as a matter of urgency.

 

Having checked the tenancy agreement itself, it does not state 'Joint Tenancy' it merely has two names in "The Tenant" box. Also, in "The Deposit" box it states:

 

£397.50 to be paid by Mr Cariad. The landlord is already holding the deposit for Mr Co-Tenant.

 

Please, can anyone help with this? Surely as my OH has been named on the tenancy agreement as paying a deposit it should have been registered separately with the DPS?

[cariad mo brwydrwr]

Sorry, forgot to add the DPS reply, which doesn't seem to properly answer any of our questions. It includes our latest response as well so the 2 emails are merged into one - hope it makes sense!

 

Dear.....

 

Many thanks for your swift reply to my query, I do however, have further questions that I hope you will be able to clarify for me. They are noted below in red:

 

Dear Sir/ Madam

 

Deposit Protection Service (DPS)

 

Thank you for your recent enquiry regarding the DPS

 

Firstly I must inform you that you have contacted the DPS (DEPOSIT PROTECTION SERVICE) not the TDS (TENANCY DEPOSIT SCHEME).

 

If a tenancy has come to an end and then the agent/ landlord and the lead tenant can request a repayment. The new tenant's details has to be registered separately under a new deposit ID and the depsoit should be submitted to us separately.

 

Just because the landlord "can" request a repayment, does not necessarily mean that they do. Therefore, if it is the case that the Landlord has merely paid the outgoing tenant with the incoming tenant's deposit, as I suspect in this case, should the Landlord still have notified the DPS of a change of tenant and tenancy agreement?

 

You can only claim the deposit that is registered under your name. The deposit repayment process can be initiated by the agent, landlord or the Lead/Sole Tenant.

A lead tenant can be selected if it is a joint tenancy. It is the lead tenant's legal responsibility to ensure that the other tenant's received their part of the deposit.

 

It is a joint tenancy, however there is no lead tenant named on the tenancy agreement, nor has any agreement between tenants and Landlord been made to this effect. Therefore this leaves me in a position that not only has my deposit not been protected, I have no right to reclaim as my name is not registered with you. Furthermore, it appears that both my and my co-tenant's deposit would be repaid to my co-tenant, as his is the only name registered, and nothing repaid to me.

 

If you can provide us your full tenancy address and the tenant's names we can check our records and advise you further.

 

I already know that my name is not registered with you, although my co-tenant is registered with you at my address, as stated in my previous email. As I am not registered with you, and effectively don't exist as far as the DPS is concerned, you are unable to provide me with any further information. Therefore I am afraid this would be a fruitless exercise.

 

If you have any queries please do not hesitate to contact us again.

 

 

In summary, I hope you may be able to answer the following for me:

• Should the landlord notify you, the DPS, of a change of tenancy agreement and tenant?
  
• As my deposit is not protected, do I have the right to reclaim the original deposit plus 3 x the deposit through the courts from my landlord?
  

I look forward to hearing from you at your earliest convenience.

 

Many thanks and kind regards,

 

We seem to be going round in circles here and getting no clear answers. I really don't know what to do for the best

[cariad mo brwydrwr]

Also, just to add further complications, there was no inventory or schedule of conditions completed or provided to my OH under the new contract. So it is a worry that the LL may claim for damages that happened before he moved in and under the old contract with previous tenant.

 

There is a "Good Discharge" clause which is concerning too as it states

 

Where The Tenant comprises of more that one person such Deposit or balance of deposit may be repaid to only one or any of such joint tenants which shall be good discharge for the landlord without further liability in respect of the amount so paid

 

Sorry, I keep harping on, but like I say we are very confused as to what action to take from here.

 

If anyone has bothered reading this far, I do hope someone can offer help or guidance as to what to do.

 

Thank you.

[Planner]

From what you are saying, it appears that your deposit has been registered under the other tenants name as a joint tenant? - Has the TDS scheme confirmed the amount they hold under the other tenants name? - does it correspond to the correct amount for you both?

 

If thats the case, then in terms of the legislation, your deposit has been protected and you have nothing to worry about in that respect.

 

In terms of the LL/Agent unilaterally 'nominating' a lead tenant, I suppose they shouldnt have done this, but obviously they have. I can see anyway around this, only asking the LL/Agent to unprotect both the deposits and re-register them individually.

 

You are, right, the deposit amount will be repaid to your c/o tenant at the end of the tenancy, and it will then be their responsbility to return any outstanding amount to you.

[cariad mo brwydrwr]

Thank you for having a look Planner - much appreciated.

 

The rent and therefore deposit has increased since the original tenancy was in place with the different tenant, so the amount held with the TDS scheme is incorrect as far as the new and current tenancy is concerned.

 

You are, right, the deposit amount will be repaid to your c/o tenant at the end of the tenancy, and it will then be their responsbility to return any outstanding amount to you.

 

This will be a huge stumbling block as there are irreconcilable differences (to say the least) between tenants and if the full deposit is given to the co-tenant there is no way he'll pay anything back to my OH.

 

My OH just wants to get out of there and have his deposit returned in full. The whole thing's been a complete nightmare. Doesn't seem to look very promising for him though . Oh well, we tried.

 

Thank you once again for taking the time to help. I know its all rather long and confusing!

[cariad mo brwydrwr]

Finally had another reply from the DPS -

 

Dear Mr....

Deposit Protection Service (DPS)

Thank you for your recent enquiry regarding the DPS.

As you are not named on this DPS account, repayment of this deposit will not be able to be made to you. In order that your name may be added to this DPS account may I request that you forward a copy of the tenancy agreement to DPS.

 

So as expected as per Planner's advice above. However, we are very confused as to why my OH should send the tenancy agreement to the DPS - surely this is the responsibility of the LL? And would it even change anything? OH is now facing the definite prospect of having no money returned as it will all go to the co-tenant who will not pass anything on.

 

I'm still of the opinion that my OH's deposit was not protected sufficiently in the first place.

 

Any help/opinions gratefully received.

[cariad mo brwydrwr]

In the vain hope that anyone has any advice, I am updating again...

 

My OH's tenancy has now ended. A checkout was completed with the LL and other tenant. The LL agreed to get the deposit sent back to her so she would split it equally to return to each tenant. However, it has been well over 10 days and OH has still not received his deposit back. LL says she hasn't reclaimed it from the DPS yet.

 

I am still labouring under the impression that his deposit was never protected in the first place, and now the LL has not returned the deposit within the 10 day timescale.

 

Should he be suing the LL now?

 

Please, please, I would be very grateful for anyone's opinions.