Moral Dillema DPS related... Please help

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    Moral Dillema DPS related... Please help

    Hi Everyone,

    First post and already asking for advice!!

    Story:
    Letting agents- great and helpful (makes a change)
    Landlord- Useless and prefers holidays over fixing the flat!

    Right i have just moved out of my rented propery, still yet to receive my deposit, but i know that the deposit was not put into a Protection scheme. So i know that i can take my Landlord to court for 3xDeposit.

    My issue is that although i hate my landlord who made me suffer a Bad winter with a broken door because he couldnt afford it (Obviously more expensive than the 3 foreign holidays he took this year). I do not hate the letting agency.

    So this bring me to a moral dilema; I take the landlord to court get my money, he then in turn takes a small letting firm to court for the same amount (maybe more) and also i believe they get struck off some list for recommended letters (so can no longer rent??!! thus go out of business??!).

    Firstly what would you do in my situation???

    Secondly do the court/Landlords tell the DPS it hasnt been protected by Letting agent X thus getting them into deep water and struck of this association (OFT, OEA, UKALA etc)?? (or have i been lied to by the letting agent?)

    Thank you
    Last edited by cm1234; 03-06-2008, 16:43 PM. Reason: to say thank you!!

    #2
    This might help solve your dilemma.

    (a) If the LL received the deposit from you, but failed to protect it, then he is liable.

    (b) If the LA received the deposit from you, but failed to protect it, then they are liable.


    In situation (a), the only way in which the LA may be liable to the LL for his losses (ie: getting sued for the 3X the deposit penalty) is if they gave the LL incorrect advice as to how to comply with his TDP obligations.
    Health Warning


    I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

    All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

    Comment


      #3
      The LA took the deposit and held it, but did not put it into a DPS.

      The LL is stupid and as such should never have been given a BTL mortgage.

      Do you have any insight into my other question regarding being struck off an associations register or list thus not allowing them to let anymore?

      Comment


        #4
        Originally posted by cm1234 View Post
        The LA took the deposit and held it, but did not put it into a DPS.

        The LL is stupid and as such should never have been given a BTL mortgage.

        Do you have any insight into my other question regarding being struck off an associations register or list thus not allowing them to let anymore?
        In that case the LA would be liable.

        Re: struck off etc. There are various voluntary quasi-professional bodies, the best known of which are NAEA and ARLA. AFAIK, they will only boot someone out if someone complains and the complaint is really serious and is upheld against the LA. Even if their membership is withdrawn, they could still practise. However, others in here are probably better placed to tell you the ins and outs of that issue in more detail.
        Health Warning


        I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

        All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

        Comment


          #5
          Originally posted by cm1234 View Post
          The LA took the deposit and held it, but did not put it into a DPS.

          The LL is stupid and as such should never have been given a BTL mortgage.

          Do you have any insight into my other question regarding being struck off an associations register or list thus not allowing them to let anymore?
          Under the insurance schemes (TDSL and TDS), I believe the LA can take the deposit and hold it. Maybe that is what they have done. The DPS scheme holds the deposit and earns the interest to pay for it.
          ASSUME NOTHING - QUESTION EVERYTHING!

          Comment


            #6
            cheers for the advice, i would not like to see them booted out, as much as i dont want their money. Im after the LL not them afterall.

            Ive already spoken to the LA and told them want i am thinking about doing, obviously they would prefer me not to do it. (Down to the missus in the end of the day though, she tells me what to do!).

            Would it be the LL who would make thecomplaint to those bodies? also would this be seen as serious?

            Youve been very helpful so far thanks

            Comment


              #7
              Originally posted by Paragon View Post
              Under the insurance schemes (TDSL and TDS), I believe the LA can take the deposit and hold it. Maybe that is what they have done. The DPS scheme holds the deposit and earns the interest to pay for it.
              No its most definately the LA who have held it. and it has not been put in any scheme, which they have admitted to me

              Comment


                #8
                Originally posted by cm1234 View Post

                Would it be the LL who would make thecomplaint to those bodies? also would this be seen as serious?

                If the LA receives it, and is held by the Court to have failed to comply with the relevant TDP provisions, then the LA is liable to the tenant for the 3X deposit penalty etc. The LL would suffer no loss, and would therefore have no cause for complaint.
                Health Warning


                I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                Comment


                  #9
                  Ah, as i have no problem with the letting agent id rather not do that...Will have to discuss with the missus and see if she want to drag the nice LA's into this..

                  I know what her answer will be

                  Comment


                    #10
                    Personally, and I accept that I may be mistaken, I thought that if a LA fails to protect a deposit on behalf of the LL then the tenant would take the LL to court, not the LL. The LA is merely just an agent and not a separate body. I do appreciate that the deposit would be held in the capacity of a stakeholder, but surely the LA is still directly representing the LL.

                    What would however happen, if this is the case, is that the LL would take the LA to court for negilence or similar, I imagine to recover their costs. I am sure someone more knowledgeable in law will be along to confirm or deny what I thought.

                    I am afraid I cannot held with the professional bodies, but if you really wanted to know I am sure that they could tell you.

                    I must admit, I find it refreshing to hear from someone who wants to use the 3x rule to punish a bad LL rather than from a pure money angle.

                    Kind regards,

                    John

                    Comment


                      #11
                      Originally posted by MaverickPropertyManagemen View Post
                      Personally, and I accept that I may be mistaken, I thought that if a LA fails to protect a deposit on behalf of the LL then the tenant would take the LL to court, not the LL. The LA is merely just an agent and not a separate body. I do appreciate that the deposit would be held in the capacity of a stakeholder, but surely the LA is still directly representing the LL.

                      What would however happen, if this is the case, is that the LL would take the LA to court for negilence or similar, I imagine to recover their costs. I am sure someone more knowledgeable in law will be along to confirm or deny what I thought.
                      That would be the normal position in the law of agency, however the relevant provisions in the 2004 Act whilst using the term "landlord", also provide, "references to a landlord or landlords in .... include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies." (s.212(9)(a))

                      As such, I believe that provision appears to make the agent directly liable for any default of theirs in respect of TDP, although I concede that may not be the case.
                      Health Warning


                      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                      Comment


                        #12
                        Possibly a little bit of a grey area as the HA states that the person who appears to be holding the deposit would be ordered to pay it into the scheme but it then states that the LL would have to pay 3x as compensation. However, if you are correct and the term LL does extend to a LA then of course it could mean LL or LA. It does appear to separate the two in terms of who has to pay it into the scheme. I have copied it below for reference.

                        (3) The court must, as it thinks fit, either—

                        (a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

                        (b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

                        within the period of 14 days beginning with the date of the making of the order.

                        (4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

                        Kind regards,

                        John

                        Comment


                          #13
                          Isn't the Law of Agency and the role of Stakeholder within this law pushing the realms of credibility a bit. Seemily based on some case from before Gone with the Wind era.
                          ASSUME NOTHING - QUESTION EVERYTHING!

                          Comment


                            #14
                            Originally posted by Paragon View Post
                            Isn't the Law of Agency and the role of Stakeholder within this law pushing the realms of credibility a bit. Seemily based on some case from before Gone with the Wind era.
                            English Law has no problem with old cases. That's how precedent works.
                            Frankly, my dear, you don't give a damn?
                            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.
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                            Comment


                              #15
                              Originally posted by Paragon View Post
                              Isn't the Law of Agency and the role of Stakeholder within this law pushing the realms of credibility a bit. Seemily based on some case from before Gone with the Wind era.
                              I'm not really sure how the agent acting as stakeholder or an an agent for the landlord would affect any claim for 3x the deposit but surely it needs to be clear on an AST in what capacity the LA is acting in.

                              It would be interesting to know if it makes a difference if the LA is acting as an agent or a stakeholder if it make a difference to any claims against the LA.

                              Kind regards,

                              John

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