deposit refund query

[HP Mum]

2 years ago relative moved out of a rental.  There was a bit of a dispute with the end of tenancy inventory check out/ deposit refund.  The LL had some financial issues and was trying to charge for a complete overhaul rather than normal fair w&t.  The dispute never got sorted - but it never went to arbitration - and then the LL sold the property 1y ago and has since disappeared totally - no-one can find them.  Meanwhile the estate agent is sitting on the deposit.  The agent says they need the LL to sign it off.  Yet the property has been sold and the LL disappeared.   What can tenant do to get the agent to release the deposit now?

[stu007]

H

 

Why is this only being raised after they moved out 2 years ago?

 

What type of Tenancy Agreement did they have?

 

Could you clarify that it was a deposit and not a holding deposit?

 

Do they have the copy of the prescribed terms of the tenancy deposit scheme the deposit is protected in?

 

Have they contacted the Tenancy Deposit Scheme to request return of their Deposit?

 

Do they have it in writing that the letting agent is refusing to refund the deposit and the reason being they need landlords consent?

 

Again it would be better if that individual came on here to give us this information rather than a third party

[HP Mum]

Just coming back to this:

 

The tenancy was contractual - outside the housing act 88 - due to high value.  Not AST.

 

The contract has a clause that states the Agent is part of TDS scheme.   The TDS advise that in normal circumstances the Agent has 3 months to raise a dispute and pass the deposit over to the TDS for the next stage of mediation/ arbitration.  However, the TDS state that in these circumstances the TA was of too large value and the deposit would not have been covered by their scheme.    That is one query - how can the Agent add a clause saying they are part of the TDS scheme, whilst equally knowing, if there was an dispute, that the scheme doesn't cover the deposit and any dispute? 

 

Secondly, the TA clauses state that the LL has apx 10 days to raise a dispute on any possible deductions to the T.   The T has the next apx 21 days to discuss with LL and his Agent.    Thereafter the Agent will fulfill their duties as deposit stakeholder and return the deposit in full or minus any deductions.   That has not happened.   It is actually almost 3y later.   They are a huge well-known firm, but a local suburb branch.

 

The LL did some repairs to the property that were never agreed upon by the T or the Agent.  A few thousand pounds worth.  He then sold the property.  In all this time LL has never requested that the Agent send him any funds from the deposit.  To the contrary the T has chased the Agent - not often enough, but T wants the £s back and closure.

The Agent is simply sitting on the deposit and suggesting T goes to RICS for advice...  Meanwhile they are sitting on almost 20k deposit - and the TA states the T isn't entitled to any interest!

 

Just wondering if a well-worded letter to head office will prompt the return of the deposit?

The TDS suggest lawyers.  But want to avoid litigation

[honeybee13]

£20k deposit? That sounds huge.

 

HB

[HP Mum]

Yes. But the rent was big so it's equivalent to the apx normal amount a LL would take

[stu007]

Hi

 

Well it would have been preferable for you to have told us about the size of the deposit in your initial post and again it would be better for the relative to come on here themselves to tell us what has happened rather than getting dribs and drabs of information from a third party.

 

The TDS are correct as they would not take on a deposit of that size £20k.

 

As for it being in the agreement we would really need to see a redacted copy of that full agreement in PDF format as we need to know exactly what the agreement says in full.

[HP Mum]

Stu007 - perhaps yes. But they aren't well, their circumstances have dramatically altered/ reversed since taking out the TA.  I'm just helping, despite having my own preoccupations. I have the agreement and will post up later. 

The TA was terminated early, with correct notice. TA was for 1y; T exited just after 6m. 

Thanks for your interest / support

[HP Mum]

 

Have copied out below the relevant bits from the TA:

 

Tenancy Agreement

Term: x day 2016- y day 2017 (1y)  (ended up terminating early, just after 6m)

Deposit: The deposit of £x (almost 20k) is paid by the Tenant to the Agent to be held by A (firm) as stakeholder.  A firm is a member of the TDS.

 

 Definitions:

1.5 - LL Agent is xxxx

1.9 - 'stakeholder' means LL Agent holds the deposit as an independent 3rd party on the terms set out in clause 5 of this TA

1.14 - the deposit is a payment made by T held by LL Agent for the duration of the TA in accordance with clause 5

 

5.

5.1 - The T shall pay the D specified to the LL Agent in advance in cleared funds on or before x date 16 which the LL Agent will hold as stakeholder, upon term of this TA.

 

5.2 - The D will be held in an instant access account named Agent xxx. Any interest earned on this account will be retained by the LL A and used to cover the LL A admin costs.

 

5.3.  The D has been taken for the following purposes:

5.3.1  Any damage, or compensation for damage, to the Premises, its fixtures and fittings or for missing items for which the T may be liable, subject to an apportionment or allowance for fair wear and tear, the age and dof each and any such item at the commencement of the Tenancy, insured risks and repairs that are the responsibility of the LL

5.3..2  The reasonable costs incurred in compensating the LL for, or for rectifying or remedying any major breach by the T of the T obligations under the TA, inc those relating to the cleaning of the Premises, its fixtures and fittings.

5.3.3  Any unpaid account for utilities or water charges or environmental services or other similar services or council tax incurred at the Premises for which the T is liable.

5.3.4  Any rent or other money due or payable by the T under the TA of which the T has been made aware and which remains unpaid after the end of the Tenancy

 

5.4  At the end of the Tenancy

5.4.1 The LL or LL A must tell the T within a reasonable time (our aim is 10 working days) of the end of the Tenancy if they propose to make any deductions from the D.  Should the LL or T not provide the LL A with either their agreement to the proposed deductions presented to them or their intention to dispute and of the proposed deductions within 21 days after the date the dilapidation schedule is provided to them, A will proceed in accordance with the 'check out report' and the suggested deductions or release the deposit in full.

Should there be any maintenance or other issues during the TA this cannot be offset against the D

5.4.2  If there is no dispute the LL or LL A will keep or repay the D according to the agreed deductions and the conditions of the TA.  Payment of the D or any balance of it will be made within a reasonable time (our aim is 10 working days) of the LL and the T agreeing the allocation of the D.

5.4.3  The T should try to inform the LL or the LL A in writing if the T intends to dispute any of the deductions regarded by the LL or the LL A as due from the D within 20 working days after the termination or earlier ending of the TA and the T vacating the Premises.

5.4.4 If, after 10 working days following notification of a dispute to the LL or LL A ad reasonable attempts having been made in that time to resolve any differences of opinion, there remains an unresolved dispute between the LL and the T over the allocation of the D, either party may refer the dispute to an independent expert appointed by the President of the Royal Institution of Chartered Surveyors and the independent expert's decision shall be final and binding on both parties

5.5.5  The statutory rights of the LL and the T to take legal actin through the Courts remain unaffected by these provisions

 

6. Type of Tenancy

6.1 This TA is intended to create a contractual tenancy outside the Housing Act 1988 (as amended) to an individual at a rental in excess of £x pa.

 

11.6 - To pay a reasonable sum for the 'check out' of the inventory and Schedule of Conditions at the end of the TA, which may be deducted from the D

 

12.1 To keep the interior and decoration of the Premises inc any fixtures and fittings in the same condition throughout the TA as stated in the inventory and SoC, although the T is not responsible for:

the installations which the LL has a legal duty to repair

f w & t

damage paid by the LL insurance policy

fire damage unless it was caused by the negligence of the T

12.2  to keep the premises and fixtures and fittings in a reasonable clean and tidy condition

12.3 to inform the LL or LL A in writing as soon as reasonably practicable of any repairs or other matters falling within the LL obligations to repair the Premises

 

 

There is a long list of regular clauses in any TA regarding the usual care of a rental property

 

43.1 The LL notifies the T in compliance with S47 & S48 of the LL & T Act 1987 that the address at which notices,inc notices of proceedings may be served upon the LL is 1)  ... or 2) if there is no managing agent then the addresses of the LL on the particulars page or as subsequently notified in writing to the T.

 

Edited February 29, 2020 by HP Mum

[ericsbrother]

the substantial repairs to the property are nothing to do with the tenancy, the LL may  well have been obliged to do them as a result of letting the property but in any case if you own a house and the roof caves in you have to pay for it, you cant expect anyone else to stump up.

that menas  the tenant or EA agreeing or not to the repais is irrelevant and the LL cnat dip into the deposit funds to pay for them

[HP Mum]

A professional inventory was done.  Same company In and Out.

I have checked the CO.

The whole 100+ page doc is filled with fw&t.

There were some miscellaneous items missing, some screw holes in walls, some slight cup marks on tables and a few light bulbs not working - all of which were marked T responsibility to fix/ make good and have £s deducted from the D.

It was noted that the Inventory was done before cleaners professionally cleaned. However, despite, this the majority of the CO stated "as Check In".

Cleaners subsequently prof cleaned.

 

Clause 5.4.4 states If, after 10 working days following notification of a dispute.....  there remains an unresolved dispute ....over the allocation of the D, either party may refer the dispute to an independent expert appointed by the President of the Royal Institution of Chartered Surveyors and the independent expert's decision shall be final and binding on both parties.   T contacted RICS  - who say they can not deal with any dispute.  Why would A put it in to the TA then?

 

The LL - has just been recontacted by the A - and now claims they spent more than the deposit in making good all the damage.  Damage that was never recorded in the Check Out.

 

Furthermore - can you believe this - the A now says that if disputes are not resolved within 6 months they give the deposit to charity....

 

Having myself checked everything I can see no grounds for any dispute at all.  Not quite sure what kind of letter needs to be written.  It seems the Agent is showing dereliction of duty....

 

[honeybee13]

Do you have photos of when you moved in and when you moved out to show what condition the property was in?

 

HB

[HP Mum]

Yes

The Inventory Check In (CI) and Check Out (CO) both included photos.

The CO clerk wrote a 100+ page doc - in which the majority of comments were "fw&t, same as CI"

 

The LL seems to have disputed the CO !

And has subsequently said they spent apx 20k repairing the property before selling it.  

The agent did nothing.  Just sat on the deposit for 3y

Edited February 29, 2020 by HP Mum

[HP Mum]

I am checking through all details thoroughly.

T moved out the same day that the Inventory was done. 

The Check Out specified more cleaning/ clearing garden was needed, so more cleaning was done the following day.   

Aside from more cleaning needed, the CO states throughout that the property was 'as Check In/ f,w&t'

 

The Inventory Company's terms state;

"The check-out report will state [our] opinion whether any damage or deterioration of any item of property has been suffered over and above the fair wear and tear reasonably to be expected in a Tenancy of the sort and period concerned, or whether any changes should be made good at the Tenant’s expense, or issues that may require maintenance attention."  

Also states:

"[Our Company] acknowledges that its opinion may be over-ruled by Expert Witness opinion on any matter and further that, in the event of a conflict between [our] opinion and the express of implied terms of the Tenancy or other agreement, then such agreement shall prevail".

However, no Expert Witness was ever called in; no referral to any dispute management or arbitration or RICS.

The Report was SO clear that there was just fw&t.

 

It is clear from email communication that in the 2 months following the Inventory Check Out report that the LL expressed concern over the condition of the property - that they did not accept the Check Out Report evaluation was f,w&t.   However, the LL did not make a formal complaint, did not take it to any legal body.   The LL stated in emails that they wanted to spend over £8k on works to the property at T expense.   Which was not noted in the CO report.   

I understand that they rented the property to another family.   Then end 2018 the same EA sold the property for the LL.  

Between the initial angry emails and now there has been zero communication from LL.

 

The EA refuses to release the deposit.

They say they need both parties to sign off release of the funds.

RICS say its of no concern to them.  The TDS are not able to assist.

It seems completely ridiculous that for 3y the Agent refuses to release funds - with no valid reason for retaining...

 

The TA terms were very specific:

 5.4.1 The LL or LL Agent must tell the T within a reasonable time (our aim is 10 working days) of the end of the Tenancy if they propose to make any deductions from the D.  Should the LL or T not provide the LL A with either their agreement to the proposed deductions presented to them or their intention to dispute and of the proposed deductions within 21 days after the date the dilapidation schedule is provided to them, Agent will proceed in accordance with the 'check out report' and the suggested deductions or release the deposit in full.

 

How can T enforce the Agent to release the deposit??

 

The TA states the T can not claim interest on the deposit held.  But the Agent has held on to it WAY BEYOND normal holding - 3y too long!   Would it be fair for T  to now ask for/ claim compound Interest of say 8%?

 

[stu007]

The difficulty is the letting agent but I have to agree for them to hold onto a deposit of such a large amount especially when the Landlord has sold the property and the letting agent cannot get hold of the Landlord.

 

I agree with UB look them up to see what regulatory bodies, trade bodies they are member of as they will have Codes of Conduct they have to follow and complain to each one about the letting agents conduct with refusing to return the deposit.

 

In fact name the Letting Agent here and let me do my digging into them.

[HP Mum]

Thanks Stu007

 

Slept on this.

The agent cannot say the LL disappeared /was not contactable/ they were unable to get any kind of documentation from him. 

The same agency clearly were in touch with him throughout 2018 and sold the property for him, taking a nice commission too.   

They surely had ample opportunity to discuss the rental deposit with him!  And they did not. 

It is clear that neither the LL nor the Agent gave the deposit any further thought after end 2016.   

The reality is - as with many agencies - is that many staff came and went and this deposit just sat in the account.   

It is a tiny branch and handles both sales and rentals.  So there is no excuse that a different branch handled sales to rentals.... Just a few people in a small office.

S*v*lls.

Edited March 3, 2020 by HP Mum

[HP Mum]

Do u think it would be possible to also throw in a cis ? Asking for say 8% interest over 3y - seeing as they have deprived T of the use of the deposit money?

[stu007]

Hi

 

From your post#17 are you absolutely sure this is just a one small branch or its a small branch which is part of a larger Group? (the reason I say this is because I took a guess from your S*v*lls and if it is the lot I suspect they are a very large Estate & Letting Agents throughout the UK but that is as said only a guess)

 

Could you just name them rather than me guessing as I do have info on my guess but cannot post it without clarification to assist you.

 

A link that may be of interest - The Property Ombudsman: https://www.tpos.co.uk/consumers 

 

 

[HP Mum]

Yes you are correct.  Small branch of that very large group.

[honeybee13]

Savills then?

 

HB

[HP Mum]

[stu007]

Savills (UK) Limited
33 Margaret Street
London
W1G 0JD

 

Company Number: 02605138

 

Companies House link: https://beta.companieshouse.gov.uk/company/02605138

 

Endole link: https://suite.endole.co.uk/insight/company/02605138-savills-uk-limited

 

BizDB: https://www.bizdb.co.uk/company/savills-uk-limited-02605138/

 

Savills Registered Body is ARLA (propertymark)
https://www.arla.co.uk/find-agent/?division=ARLA&miles=2&location=&name=Savills (UK) Limited

 

This link from above will be of interest:
https://www.propertymark.co.uk/working-in-the-industry/member-requirements/

 

 

 I would suggest that you send this Estate/Letting Agent a Subject Access Request (SAR) asking for 'ALL DATA' those simple word cover whatever format they may hold it in whether it be phonecalls, emails, written etc. (irrespective if you put specific dates always put 'ALL DATA' somewhere in the SAR)

(remember under the new DPA 2018/GDPR 2018 a SAR is free)

 

 

 

[HP Mum]

thank you.

I will read through everything

[HP Mum]

I think a simple letter to the Agent demanding the deposit return quoting the TA clauses they have broken + a SAR...??

 

Can tenant ask for interest?  If so, what % could they ask?  Statutory simple or compound?

Agent has sat on the deposit for 1200+ days...

 

Edited March 6, 2020 by HP Mum

[HP Mum]

Would a letter along the lines of this do?

 

Reference x property I demand Agents return our Tenant Deposit of £x. 

Agents have unjustifiably held our deposit for x days beyond the end of the TA.  This unwarranted delay is in clear breach of the terms of the Tenancy Agreement.

 

I attach the Inventory Check-Out Report, dated xx.    

Check-Out Report stated the condition throughout was: ‘as Check-In’/ fair wear & tear

The Landlord subsequently tried to claim huge deductions from the deposit for ‘building work’.

However:

-          There was no Tenant breach of contract.

-          The condition of the property at Check-Out was due to fair wear and tear

-          The property was returned in the same condition as it was found at Check-In

-          The Tenant carried out all their contractual obligations in the Tenancy Agreement.

Any request or additional terms to pay a disproportionately high sum for building work to the Landlord are considered unfair terms and unlawful under the Consumer Rights Act 2015.

 

Attach the TA - Clause 5 specifically refers to the Deposit.

Clause 5.4.1 – Neither the Landlord nor Tenant presented to Agent their intention to dispute any of the proposed deductions within 21 days after the date the dilapidation schedule was provided.  Agent is in breach of this clause.

Agent failed ‘to proceed in accordance with the 'check out report' and … release the deposit in full.

 

Clause 5.4.2: There was no written formal or legal dispute.

Agent is in breach of this clause.

Agent failed to ‘repay the Deposit according to the agreed deductions and the conditions of the Tenancy Agreement.   Payment of the Deposit or any balance of it will be made within a reasonable time (our aim is 10 working days)…’

 

Clause 5.4.3: The Tenant should try to inform … in writing if … intends to dispute any of the deductions regarded by the Landlord or Landlord’s Agent as due from the Deposit within 20 working days after the … ending of …’

The Tenant presented Agent Check-Out Report showed FWT and expected full return of the Deposit.

 

Clause 5.4.4: Neither party – after 10 working days nor since – has referred any complaint to RICS or any other legal body (as provided for by Clause 5.4.6).   

‘If, after 10 working days following notification of a dispute to [Agent], and reasonable attempts … made … to resolve …, there remains an unresolved dispute between the Landlord and the Tenant over the … Deposit, either party may refer the dispute to an independent expert appointed by the President of the RICS …’

Agent is fully aware that neither party ever actioned these two clauses.

 

Agent continued communication with Landlord throughout 2018 - marketing the premises, selling it in Dec 2018.  Agent still failed to reimburse the Tenant, despite selling the premises.   Clearly this is a dereliction of duty.

As Tenants have lost opportunity to invest the Deposit money whilst Agents have had the benefit of the use of this money over 3 years+, we require compensation for the loss caused.  I understand if this went to arbitration that arbitrators could award compound interest in the exercise of their powers under s 49(3) of the Arbitration Act 1996.

 

I understand Agent are members of the Royal institution of Chartered Surveyors (RICS #), members of the Association of Residential Letting Agents (ARLA), members of the Property Redress Scheme, and a Member of the Tenancy Deposit Scheme # (although TA was Contractual & Deposit not protected by TDS).

I refer Agent to:

-          Rules of the RICS Client Money Protection Scheme for Property Agents, Appendix 2, S.7.3: “As regards handling Client Money, a Scheme Member must: … e) repay any Client Money, including where feasible any interest earned, without delay if there is no longer any requirement to retain that money or the relevant client requests i

-          Access to, or availability of, Client Money, ARLA Propertymark, S.1.7: A member must ensure that, at all times, all Client Money is held in Client Bank Accounts and is available on demand to Clients without undue delay or penalty.

 

In addition S7.3…d) “keep records and accounts that show all dealings with Client Money”.

Can Agent please provide our Deposit Account records?

 

 

[stu007]

HP Mum

 

The part on RICS IMO does not apply to you as you were not the Client the Landlord/Property owner of the Property was the Client not the Tenant Renting the Property.

 

I can see why you have out this after been told to go to RICS to get the deposit back and being told by them nothing to do with them which would be correct as the tenant is not the Client the Landlord/Property owner is.

 

Has a Subject Access Request (SAR) been sent asking for 'ALL DATA'?