deposit refund query

[HP Mum]

Thanks stu007. It's just a working draft whilst I gather all info.  Hadn't considered rics only applicable to LL - as agent told tenant to contact rics!!  Will relook at this

Can add an SAR page too.

Edited March 9, 2020 by HP Mum

[stu007]

No you do not add a SAR to the letter, this must be done as a completely separate to the letter, you can do both separate but enclose both at the same time as posting ensuring to get free proof of posting from the post office.

 

Make sure with the SAR irrespective if you want to ask for specific dates to always add this simple phrase 'ALL DATA' as that covers whatever format they may hold it in whether it be, phone calls, emails, written, digital etc.

 

Just me being me but where you have mentioned ARLA I would also add that specific link  mentioned that would be of interest (note it contains the code and membership rules they should abide by):

https://www.propertymark.co.uk/working-in-the-industry/member-requirements/

 

 

 

 

[HP Mum]

I have been pondering the issue of whether the Tenant is also a client??

Surely the Agent is the middle vehicle between LL and T? 

Agent is the stakeholder of the T Deposit funds - so wouldn't that mean that T is  client?  Agent holding T client's money?  I agree if there is a problem that the funds are attributed to LL.  But not willy-nilly.  There's a legal process, as per the TA, before the T (client) funds are released to the LL (client) account.

 

Also - as want to add in paragraph about arbitrator awarding compound interest - what would be a suitable % rate to use in the spreadsheet example?  8% stat int? Or something like 4% + base??  Any suggestions?  I can't find examples.

[honeybee13]

You could check out the law of agency. 

 

HB

[HP Mum]

Hb - what do you mean?  Sorry I dont understand

[honeybee13]

There are laws that apply to people who are agents. You might find something that says if an agent can be responsible to two people at once. I've only seen situations where the agent could only act for one side. 

 

HB

[stu007]

Hi Hp Mum

 

Just to be clear with RICS payment protection you are not the CLIENT.

 

Why you ask well let me explain, it was the Landlord that Employed the Service of this Estate/Letting Agent to Rent their Property and are Registered Members of RICS, therefore the Landlord/Property Owner entered into a Contract with the Estate/Letting Agent to carry out this work so their CLIENT under RICS is the LANDLORD/Property Owner not you the TENANT as the Estate/Letting Agent is acting on behalf of the Landlord.

.

Basically the RICS protection is for the Landlord/Property Owner as it is protection in place with that specific Estate/Letting Agent being a Registered Member of that specific Scheme.

 

 

 

[HP Mum]

Thanks Stu

So to understand this properly:

due to TA being contractual the Deposit is not protected by TDS.

The Agent is the 'stakeholder' and responsible for safe-guarding the Deposit - but RICS Client protection is not valid for Tenant

So - what body or process does protect the Deposit?

 

The Agent is in breach of the TA - they broke contractual time-limits to return Deposit.  

 

[HP Mum]

Update on this

Letters been sent to Estate Agent. Demanding they repay the deposit. Highlighting they sold the property for the Landlord. Quoted clauses which prove they and LL are out of contractual time to dispute and that they can not hold on to deposit.  And asking for interest.

They basically have refused to return the deposit.  They say they must get approval of the LL to return it.  Even though both are out of time for any deliberation.   No idea where the LL is or if he'll communicate 

They have also refused to acknowledge paying any interest 

Edited July 6, 2020 by HP Mum

[HP Mum]

Further update on this.

Agent has now paid almost full amount back to Tenant. 

Agent stated they must get LL approval to return the deposit - despite both Agent and LL being years out of contractual date to repay.   They stated they needed to follow such steps.

They deducted £1k from the deposit on the basis they thought they ought to appease the LL. 

In essence Tenant very happy to finally have a refund.    Yay !!

 

However, Agent has not really acted correctly.  Despite their insistence they must.

The contract was for 2 joint Tenants (A, whose been chasing the Agent & B, their ex). 

The deposit originally paid from A & B joint bank account. 

Tenant B (the ex) was the Lead Tenant. 

He currently owes a fortune to Tenant A and their family. 

The Agent should (I assume legally) have returned the deposit to the joint account.  And the deposit proceeds would have immediately been swallowed up by debts accrued by Tenant B on the joint account.   

But  because Tenant  A was doing all the hassling and letter writing over this extended period - the Agent returned the deposit into the sole personal account of Tenant A. 

Tenant B doesn't yet know the Agent has done this.    But if and/or when he does -  would he have a valid claim against the Agent?

(For the record, Tenant A immediately used the deposit refund to repay a separate joint A&B debt.)

 

Additionally, could Tenant A still claim compound interest?   The Agent sat on the deposit for years.  The contract didn't allow for interest on the deposit - but given the Agent should have repaid years ago I am wondering if there still could be a subsequent genuine enforceable claim for compound interest???

 

 

Edited July 20, 2020 by HP Mum

[HP Mum]

Just following up on this.

 

Can Tenant A still claim compound interest?   

 

The contract didn't allow for interest on the deposit - but Agent sat on the deposit for years/  should have repaid within stated time in contract.

Is it worth putting in a claim due to the length of time - way outside the contractual period -it took the agent to repay?  Or will Agent stick to what the contract says - 'no interest payable on deposit'