Letting agent protected deposit and issued prescribed information after 30 days

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    Letting agent protected deposit and issued prescribed information after 30 days

    Hi All, first time ever posting but feeling sick all day and need some advice. I used a letting agent to let my property earlier this year and stupidly agreed to them protecting the deposit. I’ve used them before, they’re a pretty big company and been around for years so no worries. At the same time my husband became very ill and I dropped the ball and didn’t notice that the deposit was protected at 38 days rather than 30 and that the wrong date is on the date deposit received on the info from TDS. I could kick myself for relying on them! I’ve raised the wrong date issue with the agent and the fact that they have left me open to penalty (I’ve only just read that also cant rely on s.21 either without returning deposit). Agent has come back and apologised -someone was off sick and it was missed - and said that I would not be subject to the penalty as I instructed the company to protect deposit on my behalf. I don’t know what to do now. Spoke to the property ombudsman and they said I have 12 months to raise complaint but if the tenant waits until after this date to sue, I will be outside the timescale. If I make a complaint now, then how will I quantify a loss when I don’t even know if I will face one? And what do I do about the s.21? Is it better just to wait until fixed term is up and then try and sort if tenant wants to renew? Any other options anyone can think of? I appreciate I’ve been an idiot and I know I should never rely on the agent but life got in the way and lesson learnt. Now I just need to find some solutions to help me sleep tonight. Thanks

    #2
    Fire agent: Start dispute with them under their complaints process and if that gets nowhere under letting agent redress scheme. That they are big is no surprise.

    Return deposit to tenant NOW! (Then s21 possible). Pray they don;t sue you (YOU!!!!) as they are entitled to, even after return, for up to 3xdeposit. If they do sue (they have 6 years) try to negotiate...
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      When you say start a dispute with Agent, what am i asking them to do? I haven’t been sued yet so what financial compensation can I ask for? Also, would I be alerting the tenant to the error if I reimburse the deposit now rather than at the end of the fixed term? im only 2 months into the tenancy and cant exercise the break clause even until December so could leave myself open to them not repaying the deposit (if I’m understanding you correctly) so I could then register it correctly and non-payment of rent if they think I might be looking to get rid of them and I don’t have any deposit to offset arrears against. Or are you saying just refund their deposit for good???!!! No problems with tenants so far and I don’t really want to get rid of perfectly good tenants for my mistake. does anyone have experience out there of being hit with 3x deposit for being 8 days late registering?

      Comment


        #4
        It is possible to terminate the current tenancy agreement with the agreement in writing by the current tenant. Then issue a new tenancy and ensure the deposit is protected. Obviously you are reliant on the tenant agreement. If its a one year TA you could offer a sweetener. The alternative is to wait until the current fixed period finishes and issue a new tenancy at that point providing the tenant agrees. You need to gauge how your tenant would respond and how reasonable they might be. There is no loss at present so I believe there is little point in making a formal complaint to the Ombudsman now. Better to wait until there is a loss (there may not be) and pursue a complaint then although I think you would do better to issue proceedings for breach of contract. If they are a reputable company it shouldn't come to that.

        Comment


          #5
          Agreeing a new tenancy won’t stop the tenant from suing for a penalty. They have 6 years to bring a claim although I’m not sure if anyone has established whether that’s from the date of non-protection or from when the tenant is aware.

          At the moment I wouldn’t do anything to alert the tenant. I certainly wouldn’t return the deposit yet as if the tens t isn’t aware of the error then there may never be a problem.

          I’m not sure The Ombudsman’s advice regarding the timeframe for a complaint is correct. They must have to allow for this kind of thing as there will be loads of instances of this up and down the country.

          In any case, if it comes to it and the Ombudsman won’t help then you still have recourse through the courts.

          Personally, I would make it clear to the agent that any loss you suffer you will expect them to cover. They’ve admitted to the mistake (hopefully in writing?) so I doubt they will contest cover your costs of it does come back to bite you.

          The trickiest part IMO is whether to retain this agent’s services or not. Clearly they’ve made a big balls up and the excuse worries me. If they’re a large company who have been around for a long time then their processes and systems are severely flawed if one missing member of staff results in a deposit not getting protected properly.

          But on the other hand, if you fire them now you are unlikely to get any cooperation from them and you are far more likely to have to take them to court if you suffer a loss as a result of their mistake.

          Comment


            #6
            I would do nothing.
            Don't fire the agent, they've cocked up (it happens), owned up and nothing bad has happened yet.

            While there's a time limit for complaints, the time limit on the agent's liability for your loss is the same as the tenant's time-scale for suing you.
            If the tenant does sue you for the late protection you can sue the agent then.

            Chances are no one will notice, and, even if they do, the process of recovering a deposit and claiming a penalty is quite tricky and they're not going to get much joy for a deposit simply protected a few days late in error (probably one time the value as the penalty).
            Just don't expect to do much with the deposit other than return it at some point.

            Everyone makes mistakes and the world just turns.

            If you're really stressed and want to take some pre-emptive steps, open a savings account and transfer a portion to the rent each month as it's paid to build up a fund to pay for any fine. You'll be doing something practical and you won't miss the money after a while. That way, if the worst happens, you can simply pay out of your contingency fund (which is something every landlord needs anyway).
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              Thanks for the responses and the advice. Now I've calmed down I think I'm going to sit tight for the minute and see how things pan out. The agents did confirm in writing that it was their mistake and they would be responsible for the penalty if imposed. I will keep copies of that in triplicate!

              Comment

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