Deposit protection obligation: LPA Receiver or original landlord?

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  • Deposit protection obligation: LPA Receiver or original landlord?

    Hi all,

    Let me first summarise the situation at hand:

    - Landlord ("LL") defaulted on the mortgage and LPA Receiver ("LPA-R") was appointed in july 2008.

    - LPA-R has received rent on time from me ever since their appointment and has accepted the STA has it was originally signed with LL, in which the deposit is documented (i.e. no new STA has been issues/signed after the LPA-R was appointed, but they have reviewed and accepted it)

    - LL originaly protected the deposit through mydeposit.co.uk but this protection has now expired

    - I paid my deposit originally to LL and LPA-R has not successfully transferred it from LL (nor have they made any serious attempts to do so)

    I am now in a situation where the LPA-R says they won't protect my deposit as, according to them, the original LL still holds the deposit.

    Personally I believe that to be wrong as the LPA-R has accepted me as a tenant, on the basis of the original STA in which the deposit is document and I have timely been paying the rent to the LPA-R ever since their appointment. The LPA-R having the powers to collect rent I believe they should also be obliged by all the landlord's contractual and statutory dutys toward the the tenant - but is this really the case?

    Who has the legal obligation in regards to my deposit (to protect it and to return and at the end of tenancy) and who can I, if needed, file the 3 times deposit claim in the County Court against? The LPA-R (and defacto landlord) or the original LL (who still holds the deposit)?

    Many thanks in advance for any information that could help me with this situation.

  • seelphed_vr
    replied
    in similar situation

    What happened at the end in your case? I am in a similar escenario and i am doing a bit of research on the matter.

    Did you pursue the receivers for the 3x deposit claim? what has happened since?

    Any light you could shed on this will be greatly appreciated.

    Leave a comment:


  • westminster
    replied
    Originally posted by SE1 Tenant View Post
    Another thing, again, if now the LPA-R is really acting as an 'agent' to the LL they could still be held liable for the deposit (protecting and returning it) and accordingly I could direct my claim for protecting/returning the depsit and the 3 times deposit on the basis that they are just an 'agent' of the LL.

    All according to 212 (9) (a):

    (9) In this Chapter—

    (a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies, and

    http://www.opsi.gov.uk/ACTS/acts2004...pt6-ch4-l1g212
    Yes, you can also claim against the LL's agent.

    Leave a comment:


  • westminster
    replied
    Originally posted by SE1 Tenant View Post
    Another, eh, interesting twist to this is that as my deposit is not protected the LL or LPA-R can not notice me to leave as long as I pay my rent, right?

    In that case the LPA-R can't sell the flat which ultimtely he/she is mandated to do to recover the mortgage for the mortgage lender/bank.
    They couldn't use a s.21 notice seeking possession, but they could use Ground 2.

    See http://www.bilberrybloom.com/citizen...1/11050612.htm

    Leave a comment:


  • SE1 Tenant
    replied
    More discussion and some additional interesting and relevant conclusions and information on this topic on this blog:

    http://landlordlaw.blogspot.com/2009...blem-what.html

    Leave a comment:


  • SE1 Tenant
    replied
    Another thing, again, if now the LPA-R is really acting as an 'agent' to the LL they could still be held liable for the deposit (protecting and returning it) and accordingly I could direct my claim for protecting/returning the depsit and the 3 times deposit on the basis that they are just an 'agent' of the LL.

    All according to 212 (9) (a):

    (9) In this Chapter—

    (a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies, and

    http://www.opsi.gov.uk/ACTS/acts2004...pt6-ch4-l1g212

    Leave a comment:


  • SE1 Tenant
    replied
    Another, eh, interesting twist to this is that as my deposit is not protected the LL or LPA-R can not notice me to leave as long as I pay my rent, right?

    In that case the LPA-R can't sell the flat which ultimtely he/she is mandated to do to recover the mortgage for the mortgage lender/bank.

    So, shouldn't really the LPA-R be responsible for the deposit, after all, as without being in control of, and if it gets unprotected, he/she can not fullfill his/her obligations.

    Leave a comment:


  • SE1 Tenant
    replied
    So, of the LPA Receiver has appointed an Managing Agent (which belongs to the same company as the LPA Receiver) is my counterparty when/if I file a county court claim for depsoit not being protected:

    1) LPA Receiver;

    2) Managing agent appointed by LPA Receiver;

    3) Original Landlord (who holds deposit);

    or

    4) Any/all of the above?

    I have read and read and read but I can still not quite figure this out.

    Any info or advice that could shed light of this would be valuable and appreciated. Or if there is a solicitor/legal professional on here that would like talk in/advice private about that I am open for that also as I'm in a catch-22 situation if I can't figure this out as I have a very clear cut case but I don't know who to file the County Court claim against. I've tried a few solicitors but they have not been able to give me a straight answer either.

    Leave a comment:


  • chappers2341
    replied
    Originally posted by SE1 Tenant View Post
    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.

    !!
    That is not the case the reciever has to apportion the income in a specific way set out in law, essentially first he has to pay the interest on the loan to the lender, then some other obligations followed by his own costs/fees(which are also set out in law) and if there is still a surplus the remainder back to the mortgagor/LL

    My take on the deposit would be that as the LL cannot protect the deposit he cannot take/hold one so must return it to the tenant, after all the deposit ultimately belongs to the tenant

    Leave a comment:


  • havensRus
    replied
    Originally posted by westminster View Post
    Very good point; even if LL wanted to protect the deposit, he's prevented from doing so. What a brilliant system! (not)
    Agreed about the "not". However, he could potentially use the DPS - if tenant is still in occupation, provided the DPS don't prevent him from doing so because he'd been barred by Mydeposits or was insolvent. I suppose if he couldn't reprotect elsewhere, he'd have to return it.- but if he is insolvent, he cant.

    Hmmnn what a brilliant system indeed.... (not)
    Last edited by havensRus; 10-11-2009, 18:30 PM. Reason: add info

    Leave a comment:


  • jeffrey
    replied
    Originally posted by silvercar View Post
    If the landlord is insolvent, would that make the tenant a creditor?
    Yes, but only an unsecured creditor.

    Leave a comment:


  • silvercar
    replied
    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.

    Leave a comment:


  • westminster
    replied
    Originally posted by chappers2341 View Post
    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)

    Leave a comment:


  • SE1 Tenant
    replied
    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!!!!!

    Leave a comment:


  • chappers2341
    replied
    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.

    Leave a comment:

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