Deposit not Protected

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    Deposit not Protected

    Hi there,

    I have recently found out the the agent (working for the landlord) has not protected my deposit paid Summer 2017 for a 6 month tenancy. The tenancy is up in 2 weeks and I have been asked if I want to renew which I would like to do as I wish to stay in the property.

    After persistently asking the agent if the deposit has been protected, I finally had a verbal answer on the phone that it has not been protected due to 'human error' - they forgot. I was then asked if I want it protected for the renewed tenancy? Should it not be protected immediately, as soon as possible?

    What should I agree to? The agent is aware that I can make a claim and is appealing to my human side not to take this to court.
    Is there any way the agent can wriggle out of this? I do not want to agree to something verbally that will affect any future claim if I do decide to pursue one?

    #2
    Have deposit returned immediately to tenant. That might reduce any penalty if tenant later sues you (yes, YOU!) for deposit not correctly protected. And will mean you are able to serve a valid s21.

    At this time you have suffered no loss so there's nothing I think to sue for. If you do suffer a loss then fine, sue. But I would complain to letting agent redress scheme (you must go through agent's compliant process 1st) - see
    https://england.shelter.org.uk/housi...edress_schemes

    I'd be inclined to 1st carefully & slowly get copies of ALL paperwork, photos, checks from agent.
    - then instruct tenant to pay rent to you direct from then on
    - the fire agent.

    Renew? It benefits tenant & agent (they will likely charge commission for full new fixed term) but makes it harder to evict for landlord. Don't renew, keep flixibility of eviction
    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
      Artful, the OP is the tenant ;-)

      Comment


        #4
        Hi.

        More learned people will be along shortly to tell you how great a position in you are - by not protecting it and admitting as such you *can* get awarded 1-3 times the deposit amount which is a pretty good position to be in.

        Appealing to your human side made me laugh. As a tenant myself I wonder how far I would get appealing to my Letting Agent's human side when they are after money for a renewal, or are being inconvenient with inspection dates/times, or delaying fixing things that need fixing.

        Wait for the other posters here to advise you on what to do to make sure you don't jeapordise your claim. I'd also suggest you make the call on how nice the Letting Agent have worked for you so far and will do in the future. I believe you have up to 6 years from paying the deposit to make the claim, so if you see yourself renting for the foreseeable future, weigh up the options of claiming for 1-3x the deposit, or having a Letting Agent effectively 'owe you one' (I'm not talking about not paying rent at all, but no fees, flexible timings with inspections, priority fixes etc.) in your back pocket while you rent.

        I'd say you are in quite a great position!



        Comment


          #5
          I think prm70115 is the tenant.

          The agent can't prove that they protected the deposit (because they didn't), there's nothing you can agree or not agree to that changes that.

          It actually strengthens the tenant's position if the landlord/agent didn't protect the deposit.
          The tenant can't be served notice under s21 without the deposit being returned in full.
          It makes any dubious deductions much less likely at the end of the tenancy.

          The tenant has 6 years to make any claim, so there's not really any downside to continuing to rent.

          For the record (although it's not what you asked), the tenancy doesn't end if your current fixed term comes to an end, and there's no actual need to sign a new agreement, although you might want to for some additional security (however, as above, serving notice on you is going to be tricky unless you do anything actually wrong).
          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


            #6
            Originally posted by vandamme View Post
            I believe you have up to 6 years from paying the deposit to make the claim,
            To be exact, it's 6 years from the date the deposit missed the deadline - so actually 6 years and 30 days after you pay it.
            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 initial responses, very helpful.

              The agent asked me if I want the deposit protected for the tenancy renewal. Why would this be asked? Should the deposit not be protected as soon as possible when the error was realised? What that weaken my position if they protect the deposit today, 5 months and 2 weeks late?

              I have received the AST for the tenancy renewal but have not signed and returned yet.

              Comment


                #8
                Originally posted by theartfullodger View Post
                Have deposit returned immediately to tenant. That might reduce any penalty if tenant later sues you (yes, YOU!) for deposit not correctly protected. And will mean you are able to serve a valid s21.

                At this time you have suffered no loss so there's nothing I think to sue for. If you do suffer a loss then fine, sue. But I would complain to letting agent redress scheme (you must go through agent's compliant process 1st) - see
                https://england.shelter.org.uk/housi...edress_schemes

                I'd be inclined to 1st carefully & slowly get copies of ALL paperwork, photos, checks from agent.
                - then instruct tenant to pay rent to you direct from then on
                - the fire agent.

                Renew? It benefits tenant & agent (they will likely charge commission for full new fixed term) but makes it harder to evict for landlord. Don't renew, keep flixibility of eviction
                Thanks Artfull, I know what the agent and landlord will do...

                Comment


                  #9
                  Originally posted by prm70115 View Post

                  Thanks Artfull, I know what the agent and landlord will do...
                  Apologies prm, my bad, old age...

                  You've 6 years from when it should have been protected to sue.
                  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


                    #10
                    Originally posted by prm70115 View Post
                    The agent asked me if I want the deposit protected for the tenancy renewal. Why would this be asked?
                    Because they are an idiot.
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    Comment


                      #11
                      Originally posted by prm70115 View Post
                      The agent asked me if I want the deposit protected for the tenancy renewal. Why would this be asked? Should the deposit not be protected as soon as possible when the error was realised? What that weaken my position if they protect the deposit today, 5 months and 2 weeks late?
                      I'd guess because they're thinking you might ask for it back instead.
                      Yes.
                      No. It might reduce their penalty if you sue them - but you probably won't
                      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


                        #12
                        Originally posted by jpkeates View Post
                        No. It might reduce their penalty if you sue them - but you probably won't
                        Why wouldn't I sue them?

                        Comment


                          #13
                          Originally posted by prm70115 View Post
                          Why wouldn't I sue them?
                          Because if they give you your deposit back (now or when you leave the property), it's an expensive and quite difficult process.
                          It's quite easy to lose by making a procedural mistake.

                          It's why tenants use no win no fee parasites who threaten to sue rather than actually ever going to court.
                          And they end up with peanuts while the parasites get large fees.

                          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


                            #14
                            Here is Shelter's detailed guide on suing for the penalty (note, penalty not compo).
                            https://england.shelter.org.uk/housi...nsation_claims

                            I'd certainly strongly suggest it's worth at some point you sending letting agent AND landlord separate letters pointing out they've broken the law: The law that parliament has twice passed, the second time giving 30 days to protect rather than the original 14 as landlords/agents said 14 days too short. And requesting their proposals to compensate you: Use Shelter's draft letter.
                            https://england.shelter.org.uk/housi...nsation_claims

                            But only do so when you are already planning on leaving as I suspect it will result one way or another with a s21 notice and eventually eviction.
                            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


                              #15
                              To give a more detailed answer now that I have time. From a landlord/LA point of view (i.e. if they were the one asking), there's really no reason for them to return the deposit to you. If you live by the end of the fixed term, they can just return the deposit to you then minus any deductions. In either case of you renewing or staying beyond the fixed term into a statutory periodic tenancy, they can protect the deposit correctly & serve prescribed information any time up to 30 days after renewal/SPT, and they'll be fine for the subsequent tenancy.

                              Now from your tenant point of view, it's the law that the landlord must protect the deposit and serve PI. It's not your responsibility to tell them to do so, or decide whether you want them to. In fact, if they fail to protect the deposit correctly and serve PI within 30 days from the renewal or statutory periodic tenancy starting, they would be liable to a second penalty of between 1x - 3x the amount of the deposit.

                              See this for a description of the process of a penalty claim.
                              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                              Comment

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