The Dispute Service

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  • The Dispute Service

    Our AST tenancy agreement was set up by a letting agent. I have now found that as the rent is over £25,000 a year it should be (or is) a common law tenancy.

    My question is this: the agent lodged the deposit with TDS which I understand they should not have done. What are the implications of this? Can the deposit be retrieved and put in a deposit account which I, as the landlord, would hold?

    Thanks.

  • #2
    Originally posted by Thyrsis View Post
    Our AST tenancy agreement was set up by a letting agent. I have now found that as the rent is over £25,000 a year it should be (or is) a common law tenancy.

    My question is this: the agent lodged the deposit with TDS which I understand they should not have done. What are the implications of this? Can the deposit be retrieved and put in a deposit account which I, as the landlord, would hold?
    Your letting agent doesn't know what they are doing. Suggest they might like to learn a bit more about what they should know. If you have been sensible and appointed a Regulated Agent you can make a complaint. Demand they retrieve the money. If I were the tenant I wouldn't be happy about the L holding the deposit, but then again I wouldn't want this agent to either!
    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.

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    • #3
      Originally posted by Thyrsis View Post
      Our AST tenancy agreement was set up by a letting agent. I have now found that as the rent is over £25,000 a year it should be (or is) a common law tenancy.

      My question is this: the agent lodged the deposit with TDS which I understand they should not have done. What are the implications of this? Can the deposit be retrieved and put in a deposit account which I, as the landlord, would hold?

      Thanks.
      So the agent is holding the deposit, and it is 'protected' by TDS (The Dispute Service, one of the two insurance based schemes)? Well, it probably isn't 'protected' under the TDS's T&C.

      The agent's ignorance of what is/isn't an AST is slightly worrying. Is it a member of a professional body such as ARLA, with protection for clients' accounts? If not, I would make moves to retrieve the deposit from them because you, as LL, are ultimately responsible for the safekeeping of the deposit, and if the client account isn't protected then agent could go bankrupt leaving you to repay the deposit to the tenant, and no agent to sue for it back.

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      • #4
        Its worth noting, that whilst you aren't compelled to protect the deposit under common law, common law deposits are not excluded from acceptance with the schemes.

        For deposits of this size, it can be peace of mind for tenants to know the deposit is still protected, regardless of whether it needs to be. Unless you have a more compelling reason why you are unhappy for the tenants deposit to be protected.

        But it is a startling failure in what should be common knowledge by the agent, whom should have advised you that the deposit did not need to be protected.
        Last edited by NoMoreFaith; 05-02-2010, 10:00 AM. Reason: Spelling!
        If I am offering advice, I am doing so purely because I think I know the answer and would like to help, but... and its a big but, I do occasionally get things wrong, as anyone does.

        So please don't sue.

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        • #5
          Thanks for your replies. I'm amazed that a reputable city estate/letting agent has made such a mistake!

          My other half asked the agent about the position with the deposit and she replied ' don't worry, we can get hold of the deposit any time we want to.'

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