Deposit protection obligation: LPA Receiver or original landlord?

[Poppy]

In my opinion emails are naff when dealing with important matters - especially matters that may lead to court proceedings. Write a letter, sign it, copy it, post it to your landlord by special delivery, keep the receipt.

Emails have a habit of being ignored or accidentally deleted. Your landlord cannot ignore a special delivery and you can absolutely prove its service.

[westminster]

Great. Thanks.

Is email not good enough? Even with a "delivery recepit"?

Probably. But do both to be on the safe side, i.e. email and letter.

[havensRus]

Great. Thanks.

Is email not good enough? Even with a "delivery recepit"?

NO. Do it in writing. Service of notices is done in writing, to LL's address.

[havensRus]

mydeposit

SE1 Tenant, as a matter of interest, could you post up the content of the letter from mydeposit informing you the deposit protection had expired? I'm curious.

[jeffrey]

It should be the case that, once a deposit is protected, it stays protected regardless of LL's failings.

I note that rule A3.1.3 says that members are forbidden from unprotecting a protected deposit without the knowledge or agreement of the tenant - yet it's okay for mydeposits to do this?! Further irony in the fact that the consequence of breaching rule A3.1.3 is...cancelling membership, thereby cancelling the deposit protection.

I agree. What happened here is L's estate passing to control of Receiver R. Note that legal title does not pass to R; does this make a difference?

If one considers similar situations (e.g. L dies so PRs gain legal title; or L transfers to self + spouse), Deposit Protection rules should not simply be disapplied. Why does L's mortgagee's appointment of R affect it, just because R is not an acknowledged customer of the Scheme concerned?

[SE1 Tenant]

Just came back from the postoffice. Sent a paper version of the email on a tomorrow guaranteed delivery tracking/recorded service. As someone said, to be on the safe side.

This is the wording of the mydeposit.co.uk letter:

"It is a requirment of the Housing Act 2004 that we write to inform you that your landlord, XYC Ltd, is no longer a Member of This Scheme.

As a consequence, the deposit held by them on your behalf will cease to be protected by this Scheme 90 days from the cancellation date, DD MM YY."


Some more blab on on the leagal obligation of LLs and then:

"If you need to raise a Deposit Dispute with mydeposit you should contact us immediately. Please not that we will ONLY accept disputes if:

- Your tenancy has FORMALLY come to an end and;

- The formal end date of your tenancy agreement is BEFORE the date we cease protection of you deposit (see above date)."

I guess it could be questioned if my tenancy FORMALLY has come to an end given that I am in a Periodic Tenancy now. But lady at mydeposit said I could use their claim process if LL fail to renew protection also. What a minefiled this is....... Really, when, is this buy-to-let debacle and its bizarre consequences in the UK come to an end and some decent, fair and workable protection for all parties be introduced??!!! It needs a major overhaul but I'm not holding my breath.

If I am still unsucessful in getting the original LL to renew protection or pay back the deposit, could I direct my claim, through the County Court, to the LPA Receiver instead?

[havensRus]

If one considers similar situations (e.g. L dies so PRs gain legal title; or L transfers to self + spouse), Deposit Protection rules should not simply be disapplied. Why does L's mortgagee's appointment of R affect it, just because R is not an acknowledged customer of the Scheme concerned?

That's the Mydeposits' rule:

A3 Cancellation of Membership by us
A3.1.5 You have a Court Judgement registered against you or any petition to wind up is presented or a
liquidator, receiver, administrator, administrative receiver, manager, trustee in bankruptcy or similar
officer is appointed or you cease to carry on business under the name registered as Member

Whether or not it makes sense is another matter entirely.

I've just noticed that the scheme states that if they decide to cancel or not renew then:

A3.2.1 We will serve a 14 day written notice of intended cancellation stating the cancellation reasons.
A3.2.2 Within the 14 days of the date of the notice in A3.2.1 you may give us reasons (in writing) as to why Membership should not be cancelled. During this period you will not be able to protect or unprotect any deposits.
A3.2.3 At the end of 14 days in A3.2.1 we will write to you giving you notice of our decision as to whether your Membership has been cancelled.
A3.2.4 Notwithstanding the notice in A3.2.3 Deposits will remain protected in accordance with A5.1.
A3.2.5 Written notices will be given by us following the cancellation in A3.2.3 to your Tenant(s) (and Landlord Client(s) if you are an Agent) informing them that their Deposits will cease to be protected after a maximum of 90 days from the date of the notice under A3.2.3.

whereas if the LL cancels the membership:

A4.2 We may, following your notice under A4.1, write to your Tenant(s) (and Landlord Client(s) if you are an Agent)
advising them that you have cancelled your Membership.
A4.3 If there are any outstanding or ongoing Deposit Disputes at the time of cancellation you agree to comply with our reasonable instructions. The instruction may be made by us or the Adjudicator.
A4.4 You will not be entitled to any refund of Membership Fees or Deposit Protection Fees following Cancellation of your Membership in A4.1.
A4.5 Notwithstanding the notice under A4.1 your Protected Deposits will remain protected in accordance with A5.1.

Notice the emphasis on what they will do if they cancel - and what they may do if LL cancels membership.
As always, their decision is final, and there is no right of appeal!!

[havensRus]

I guess it could be questioned if my tenancy FORMALLY has come to an end given that I am in a Periodic Tenancy now. But lady at mydeposit said I could use their claim process if LL fail to renew protection also. What a minefiled this is....... Really, when, is this buy-to-let debacle and its bizarre consequences in the UK come to an end and some decent, fair and workable protection for all parties be introduced??!!! It needs a major overhaul but I'm not holding my breath.

If I am still unsucessful in getting the original LL to renew protection or pay back the deposit, could I direct my claim, through the County Court, to the LPA Receiver instead?

Thanks for that.

Your tenancy has not formally ended simply because its in the statutory periodic phase. You have to have moved/vacated the property to say that it has ended.

What the scheme has not done is to make provision for reprotection of the deposit if they cancel the membership. Its obvious now that the cancellation was initiated by them, not the LL.

If the LL had initiated the cancellation, their rules say the LL must provide evidence that the deposit has been protected elsewhere. Which it obviously hasn't been.

Best wait for the outcome of your letter to the LL. If LL does not return the deposit or reprotect in another scheme, then raise the dispute.

The legislation/rules/implemenation of the deposit schemes is full of holes - worse than a sieve.

Yes, you could use the courts to reclaim the money, instead of via the scheme's arbitration service.

[chappers2341]

This is a tricky one currently your LL is still your LL and the LPA recievers are technically his agents(although they have been appointed by the lender).

But due to the insolvency act your LL cannot protect your deposit, the deposit however is still in the hands of your LL to do has he sees fit.
You should have been issued with a warning notice that your deposit was about to become unprotected so you could take steps to claim it back.
The LPA recievers have never had your deposit and won't be responsible for it and probably won't be interested in having anything to do with it, as their prority will be to dispose of the property.
They wont care too much what state it is in when they sell it.

You say your deposit is still protected for another month and a half.
As you are on borrowed time anyway I would find somewhere else to live quick, give your months notice to the LPA reciever and ask for your deposit back from your LL, you then still have time to use the arbitration process should your LL try getting funny.

[SE1 Tenant]

I'd still be really keen to hear if anyone could help me figure out if I end up filing a claim through the County Court, should I file it against:

- Original LL, that still holds the deposit or;

- LPA Receiver, who has accepted that tennancy agreement and collects rent?

There must be an answer on this. Or has it never been tested to what extent the LPA Receivers powers and obligations extends? To me it seems unreasonable if they can be given the power to accept/reject the original tenancy agreement (in my case they accepted it) collect rent and call themself "de-facto landlords" if they also can't be held accountable for the obligations related to the deposit (protect and pay back). Despite legal title hasn't transfered to LPA Receiver the still benefits from the cash-flows generated by the flat/property, thus should, in my view also be held accountable for the same obligations as the original/defaulted LL.

I suspect that this will end up in a situation where I have to go to the County Court, but I'm in a catch-22 situation here as I can't do that unless I know who to file that claim against.

[havensRus]

I'd still be really keen to hear if anyone could help me figure out if I end up filing a claim through the County Court, should I file it against:

- Original LL, that still holds the deposit or;

- LPA Receiver, who has accepted that tennancy agreement and collects rent?

The LL, who is still the LL and holds the deposit.

[chappers2341]

almost certainly as above.
It is the same as any tenacy through an agency the LL is ultimately responsible the agent is just that, his agent and in this case ,strange as it may seem, the LPAR is the LLs agent.

Just to add have you asked the LL for your deposit, your grounds for having it returned are that he is no longer able to protect it for you, as he is legally required to do.

[SE1 Tenant]

The LL / agency situation is very different from the LL / LPA Receiver in my view, on the ground that ultimate benefactor of the cash flow generated by the flat/proterty (i.e. the rent) is now the LPA Receiver. This is not the case in a LL / agency situation.

Yes, I have asked the original LL to either 1) renew the protection or 2) pay me back the deposit. But, most likely none of those will happen knowing them.

So, then I'm back at the filing a claim through the County Court and reading all the contributors response above, and other sources I have reserached I cannot really say that there is an unambigous crystal clear picture to me quite yet. So, any new/more input on this is highly apprecited!!!!!

[westminster]

But due to the insolvency act your LL cannot protect your deposit, the deposit however is still in the hands of your LL to do has he sees fit.

Very good point; even if LL wanted to protect the deposit, he's prevented from doing so. What a brilliant system! (not)

[silvercar]

If the landlord is insolvent, would that make the tenant a creditor?

I owuld have thought that the tenant would not be able to demand return of the deposit whilst still resident in the property?

Just to add a point on mydeposits. They have been renewing membership free of charge, so they would not have been charging the landlord anything to continue protection of a deposit for a tenant whose contract has gone from AST fixed term to periodic. No payment for protection of deposit (as already protected under existing tenancy agreement) and no renewal of LL membership fee. So their removal of landlord's memebership is purely a policy decision or to protect themselves from the higher risk of insolvent LLs not returning deposits.