Take A Letting Agent To Court - Help!!!

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    Take A Letting Agent To Court - Help!!!

    When the letting agent refused to return part of my rent deposit, I bravely took them to the county court after the negotiations failed (Far too brave as it seems!), at a cost of £25 for serving the claim and another £25 for hearing if held.

    The agent claimed that I have not paid the part of the deposit (the holding deposit paid at the point of viewing the property) at the outset as they could not find the payment record in their A/C (only 12 months later after the tenancy ended). I am pretty sure I have paid the money but the trouble is I have neither a receipt nor any bank transaction details to prove the payment other than a few letters issued by the agent acknowledging the receipt of the payment and the signed tenancy stating the full deposit paid to the agent.

    Now the agent defended that those acknowledging letters are their errors (does a simple statement like this can clear them from the responsibility they had to return the money?) and the case will be heard in court soon. A solicitor’s advice would be ideal but it’s perhaps just not worth it given the relatively small amount of money involved.

    Do I stand a chance? Your expertise will be much appreciated. Thanks in anticipation.

    #2
    Originally posted by tenjust View Post
    The agent claimed that I have not paid the part of the deposit (the holding deposit paid at the point of viewing the property) at the outset as they could not find the payment record in their A/C (only 12 months later after the tenancy ended). I am pretty sure I have paid the money but the trouble is I have neither a receipt nor any bank transaction details to prove the payment other than a few letters issued by the agent acknowledging the receipt of the payment and the signed tenancy stating the full deposit paid to the agent.
    You're "pretty sure" you've paid the money, and have issued a claim on that basis? You're going to say that in court?

    Or are you going to say, on oath, that you "definitely" paid it? Go figure...

    Presumably this would have been a cash transaction, or you'd have some sort of paper trail? Especially if so, it would be pretty surprising if the agency is at all reputable that they wouldn't have issued a receipt, eg to cover themselves against something like this. I would anticipate them producing a sequential receipt book in court, with no matching counterfoil at around the time you claim.

    Comment


      #3
      Paperwork is king.

      If you still have the letters or (as is usual) your tenancy agreement says something like "Deposit held, protected according to statute £xxx.xx" then you are home and dry.

      The defendant cannot say they were issued wrongly, and expect to be believed - unless there was additional documentation around the same time correcting the error.

      Your record of actually paying it is not required - the main document is the tenancy agreement. This is a legal contract, so is assumed correct.
      On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

      Comment


        #4
        Originally posted by tenjust View Post
        When the letting agent refused to return part of my rent deposit, I bravely took them to the county court after the negotiations failed (Far too brave as it seems!), at a cost of £25 for serving the claim and another £25 for hearing if held.

        The agent claimed that I have not paid the part of the deposit (the holding deposit paid at the point of viewing the property) at the outset as they could not find the payment record in their A/C (only 12 months later after the tenancy ended). I am pretty sure I have paid the money but the trouble is I have neither a receipt nor any bank transaction details to prove the payment other than a few letters issued by the agent acknowledging the receipt of the payment and the signed tenancy stating the full deposit paid to the agent.

        Now the agent defended that those acknowledging letters are their errors (does a simple statement like this can clear them from the responsibility they had to return the money?) and the case will be heard in court soon. A solicitor’s advice would be ideal but it’s perhaps just not worth it given the relatively small amount of money involved.

        Do I stand a chance? Your expertise will be much appreciated. Thanks in anticipation.

        I really dont know, but shouldnt you be taking the Landlord to court instead? I was under the impression that this is becuase the Tenancy (and therefore the legal relationship) is between only you and the Landlord - the agent simply acts on the L behalf...

        Comment


          #5
          Agent admit an error, or just an excuse?

          Thanks very much for all your comments, esp. comment from Esio Trot, very encouraging!

          Indeed I have all the acknowledging letters and the signed tenancy which all stated clearly that the holding deposit (£xxx, in the letters) and total deposit (including £xxx, in the tenancy) have been paid to the agent. I of course want to say in court that I "definitely" paid the money, but at meantime I thought I can't prove myself as I have not got the receipt of payment. The drawback on my side is, as this happened some 17 months ago, I don't really remember now how I paid the holding deposit, by credit card, debit card or cash. My personal note shows I paid it as well. I also attempted to dig out my old bank statements to find some clue but prove to be fruitless (Payment for the rest of the deposit is clear though, as it involved a large amount (approx £2,000) at the day of signing the tenancy and was security checked by my bank at the time). Nevertheless, I never doubted the payment made to the agent. I suspect this case is just the agent messed up their account (as the relatively small holding deposit was paid well in advance of the rest of the deposit) and now try to blame the tenant.

          It puzzles me if the agent admit their error in court, is it in legal terms gonna make the acknowledging letters and tenancy document useless in terms of proof of the payment? BTW the agent at the time did nothing whatsoever to indicate there was an error following their acknowledging letters and signed tenancy until they file their defence recently.

          Comment


            #6
            A legal question

            Could any one comment if a tenant is obliged to provide proof of payment e.g. bank transfer records in a bank statement whilst landlord/agent have acknowledged the receipt?

            Comment


              #7
              The tenancy agreement should be enough evidence. Don't dither or hesitate if the judge asks a question - be positive and you'll be OK
              The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

              Comment


                #8
                Originally posted by fallenlord View Post
                I really dont know, but shouldnt you be taking the Landlord to court instead? I was under the impression that this is becuase the Tenancy (and therefore the legal relationship) is between only you and the Landlord - the agent simply acts on the L behalf...
                This brings us again into the area of how the deposit is held.

                If held as stakeholder, this is a quasi-trustee position with a duty of care to both landlord and tenant. If as landlords agent, then the LA does as the landlord says.

                If the former, I'd say sue the LA but also name the LL; if the latter, sue the LL.
                On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

                Comment


                  #9
                  Originally posted by tenjust View Post
                  Could any one comment if a tenant is obliged to provide proof of payment e.g. bank transfer records in a bank statement whilst landlord/agent have acknowledged the receipt?
                  1. Onus is on T to pay.
                  2. T paid (he/she thinks).
                  3. Agent acknowledged.
                  4. Agent is bound by that, except in case of manifest error (onus of proof on agent), so do not worry for the time being at least.
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

                  Comment


                    #10
                    interpretation of manifest error

                    Originally posted by jeffrey View Post
                    1. Onus is on T to pay.
                    2. T paid (he/she thinks).
                    3. Agent acknowledged.
                    4. Agent is bound by that, except in case of manifest error (onus of proof on agent), so do not worry for the time being at least.
                    Thanks for the rather pro comment (i think!).

                    Btw, can a simple statement admitting error from the agent be considered as proof of manifest error? or the agent need some hard facts to prove? If the acknowledging letters can be considered as manifest error, then the agent had made manifest error more than once, and they did not take any corrective actions over the whole tenancy period.

                    Comment


                      #11
                      If any acknowledgment were capable of unilateral retraction, at drop of hat, nothing would ever be reliable. Evidence rules OK.
                      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                      4. *- Contact info: click on my name (blue-highlight link).

                      Comment


                        #12
                        legal terms

                        Originally posted by jeffrey View Post
                        If any acknowledgment were capable of unilateral retraction, at drop of hat, nothing would ever be reliable. Evidence rules OK.
                        Thanks for the comment. Can anybody advise what are the legal obligations on the agent/landlord to return deposit e.g. as per the housing act? Thanks.

                        P.S. I start feeling the tediousness of taking court actions even a small claim track...

                        Comment


                          #13
                          Case update

                          Just an update on the case.
                          Still have not got a hearing date fixed but just received a "General Forms of Judgement or Order" from the county court, saying:
                          1)." On the court's own initiative...", I shall "file with the court and serve upon the defendant documentary evidence of the payment of the deposit".
                          2)CPR 3.3(5)b Notice

                          Three questions here: 1).Does it mean I need to send a copy of documentary evidence to the defendant as well? 2). Issuing this order (judgement) means the defendant failed to file the relocation questionnaire? 3). No idea what CPR 3.3 (5)b is for (apprently a civil procedure rule but can't find the content).

                          Would like to hear your comment please. Thanks.

                          Comment

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