Problems with Deposit and Agent - please help!

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    Problems with Deposit and Agent - please help!

    Sorry for the long post, but I really need some advice as I'm stressing out!!

    I've recently moved out (21/05/10) of my rented studio flat, after dutifully paying my rent and bills fully and on time, and have been a very good tenant in all respects. I went through an agent, Lewis Spencer in Manchester, which has since dissolved (a fact I wasn't informed of until I looked it up online), paying £110 agent fee, one month's rent in cash (only a handwritten receipt for £200 of it, as I had to pull it out of the ATM in two instalments, and I didn't get a receipt for the final £100) and a £300 deposit by cheque made out to the agent. I was ignored by the agent despite my phoning every day asking for a copy of my AST contract which he had promised would be in the post, but which finally came a month later after both the landlord of the property and I kept asking for it frequently.

    The agent and I got into an argument over the phone, and he became vicious and I ended up calling the police as he threatened me, telling me to watch my back and that I didn't know who I was dealing with. This was especially scary as I was a female living alone, and he knew my address. As a result, he refused to speak to me again, and would only speak to the landlord, which suited me as the landlord is a nice guy, and has been messed over by the agent too. I've paid my rent directly into the landlord's bank account by direct debit.

    I've now left the property, and have been trying to get my £300 deposit back. I can't get hold of the agent, as he's moved out of his business premises, the phone numbers I had for him no longer work, and even if I could get hold of him, he wouldn't speak to me. The time before last that I phoned the landlord, the agent was with him, and I could hear him mouthing off about me and saying some threatening things. I thought last week that the agent has paid the landlord, who said that when he receives the money from the agent he will transfer the deposit into my bank account. But the money is not forthcoming from the agent, it has not been put in a deposit protection scheme, despite the landlord previously informing me verbally that it was protected (I rang all the schemes and they have no record of the deposit).

    I asked the landlord if he could give me the deposit and then get the money back from the agent, but he is in financial trouble, and can't afford to give me the money. He is also saying that the deposit money has to come from the agent, not from himself.

    I don't know what to do - it says on my AST that the agreement is between landlord and tenant, and that the deposit is held by the landlord's agent. The contract has not been signed by either the agent or the landlord, despite my asking them to.

    What should I do? Thanks in advance for your help. I don't want to end up in court, I just want my £300 deposit back. Is the landlord or the agent responsible for giving me back my deposit, and how should I go about it?

    Thanks.

    #2
    The landlord is wrong, the deposit is his responsibility. Was the deposit protected in one of the 3 goverment approved schemes?

    Comment


      #3
      Hi. Thanks for replying. No, the deposit has not been protected at all. I'll be phoning the landlord tomorrow, but he's been very decent, and I don't want to annoy or upset him. But I don't think he has the money to pay me the deposit at the moment, can I suggest to him that he pays me, say, £100 a month by direct debit for 3 months, which seems the fairest way if he is struggling financially.

      If I suggest such a thing, would this harm my case should he default on the payments or not pay me the full amount, and I end up in court (which I do not want to do).

      Also, the landlord is adamant that the agent is responsible for returning my deposit - what laws state that the landlord is responsible, so that I can tell him when I ring him, so he knows that I'm not trying to fleece him?

      Thanks for all your help.

      Comment


        #4
        Housing Act 2004
        Section 213 says what the landlord has to do
        Section 212(9)(a) specifies that agent and landlord are the same thing so far as the legislation is concerned.

        If you pay money to an 'agent' he is acting on behalf of the landlord and the landlord is responsible for the agents actions - he is - in effect - an employee.

        I would not offer the landlord a 'deal', I would go for the full amount and let him come back with what he feels he can afford.

        This letter has worked in the past, although the bit about a penalty is just a threat - it is risky trying to get that and it is possibly best ignored.

        =======================================

        letter before action

        Dear Mr XXXXXXXX

        RE: 123 High Street, Anytown, AT1 2AA

        On the XXX of XXX 20XX I/We paid your agent a tenancy deposit of £XXX in respect of the above property.

        The Housing Act 2004 introduced the concept of "Tenancy Deposit Protection" and obliges private landlords to protect/register all tenancy deposits with one of 3 approved schemes.

        I/We have verified with all three schemes that the deposit your agent held was NOT protected by any scheme. This is unlawful.

        You must refund the outstanding balance of my/our deposit IN FULL within 14 days. If you fail to do so, I/we shall sue you for the balance due PLUS the statutory penalty for non-protection of deposits, which is three times the value of the deposit.

        Yours sincerely

        ============================================

        Don't worry about court. If it comes to that, this would be held in the small claims track which is reasonably straightforward (books are available). You can start a court claim at www.moneyclaim.gov.uk

        I am sure you will find this collection of threads useful
        http://www.landlordzone.com/forums/s...ad.php?t=11447

        Comment


          #5
          Thanks so much - that's really useful. Does it matter that the agent, to my knowledge (based on what the landlord has told me), has not passed on my deposit to my landlord? Thanks.

          Comment


            #6
            Originally posted by ecn1982 View Post
            Thanks so much - that's really useful. Does it matter that the agent, to my knowledge (based on what the landlord has told me), has not passed on my deposit to my landlord? Thanks.
            No, thats between the agent and landlord, not your issue.

            Comment


              #7
              Thank you so much for your help - I really appreciate it. Cheers.

              Comment


                #8
                Update: the landlord, despite my constantly phoning him, leaving messages on his voicemail and texting him explaining the law (i.e. that he is responsible for returning my deposit under the Housing Act 2004) he has not put the money in my account as promised.

                In addition, I am abroad for the summer for my studies, so my family is phoning him on my behalf. I have written and signed a letter stating that I want my deposit back and outlining the law as suggested above, but have not yet sent it.

                I have just found out that the landlord is now saying that I left the flat dirty (I did not! I spent hours cleaning it, but stupidly did not take photos as I trusted the landlord, as I thought - wrongly - that he was a decent guy. I do however, have photos of the state the flat was in when I moved in - it was disgusting!), that I stole some chairs (lies!!!) and that things were broken. He has also said that as landlord he is not responsible for returning my deposit. He has said that he will give me some money back, but has not yet given me anything, and has not said how much. There was no inventory, and he was not there to collect the keys when I left, he told me to leave them with a neighbour, which I did, who checked out the flat and says that everything was fine.

                I am furious, and am ready to go to court, but I have some legal questions. Firstly, I have a contract, but it is not signed by the agent (a scumbag) or the landlord. It does state on it that the agent is holding a deposit of £300 from me. Does this contract have any legal standing, as it is not signed? I gave the agent £300 cash for the first month and a cheque for the deposit, but I do not think that I have a receipt for the cash - I did have a receipt for £200 of it, but I fear that it may have got lost when I moved, as I cannot find it. Does it matter that I do not have a receipt, as in court it would be my word against his, as he will obviously say that he did not receive the money. However, the (unsigned) contract clearly states that I have given a deposit of £300.

                I understand that for a landlord to take any money out a deposit, he must show receipts for work done? He is obviously just looking to make a quick buck out of me, so how do I insist on receipts?

                What is my legal standing regarding the contract and the methods of payment - would my word be enough in court, on the basis of probability (i.e. if I was a month in arrears for the first month, why did the landlord not chase me for the money, considering I paid each following month by direct debit on time and in full, and all my bills in full). I have explained the law about the deposit, but he is adamant that he is not responsible. Should I get my student's union involved to write him a letter in simple English explaining the law (he is a native Briton; he is not misunderstanding what I have told him due to English being his second language or anything).

                I really don't want the stress of going to court, as I am in the middle of doing a PhD and spend a lot of time abroad doing research, so may not be able to attend the court. I am also abroad until September, so do not want to start legal proceedings until I return, but am going abroad again next February - would this give me enough time (5 months) to complete all proceedings against him should I go to court? Would my not making a claim until September work against me, even though I can prove that I have been abroad for my PhD?

                Any advice would be greatly appreciated. Thank you.

                Comment


                  #9
                  Originally posted by ecn1982 View Post
                  I have just found out that the landlord is now saying that I left the flat dirty (I did not! I spent hours cleaning it, but stupidly did not take photos as I trusted the landlord, as I thought - wrongly - that he was a decent guy. I do however, have photos of the state the flat was in when I moved in - it was disgusting!), that I stole some chairs (lies!!!) and that things were broken.
                  The landlord would have to prove all of this to the judges satisfaction. Your photos will help and the lack of initial inventory will make it almost impossible for him to do so.
                  he told me to leave them with a neighbour, which I did, who checked out the flat and says that everything was fine.
                  It would not be essential, but if you could get a witness statement, it would add to your case.
                  I have a contract, but it is not signed by the agent (a scumbag) or the landlord. It does state on it that the agent is holding a deposit of £300 from me. Does this contract have any legal standing, as it is not signed?
                  The judge may take it into account - although it would have more standing if it was printed on the agencys printed paper or something like that - to prove you didn't knock it up yourself.
                  I gave the agent £300 cash for the first month and a cheque for the deposit, but I do not think that I have a receipt for the cash
                  If he claims you didn't pay, you are likely to have to prove it. The judge will decide what happened on the "balance of probabilities" and so the fact that he didn't chase will help as would a bank statement showing you took out £300 on that day.
                  I understand that for a landlord to take any money out a deposit, he must show receipts for work done? He is obviously just looking to make a quick buck out of me, so how do I insist on receipts?
                  You can't insist on receipts, because you have to pay for the value of the damage done, not the cost of repairing it. It is a subtle difference but essentially means that if the landlord is willing to continue using the 'damaged' item, he doesn't have to get it repaired, but it would still be worth less.
                  Should I get my student's union involved to write him a letter in simple English explaining the law (he is a native Briton; he is not misunderstanding what I have told him due to English being his second language or anything).
                  Can the SU provide any legal advice / representation?
                  I really don't want the stress of going to court, as I am in the middle of doing a PhD and spend a lot of time abroad doing research, so may not be able to attend the court. I am also abroad until September, so do not want to start legal proceedings until I return, but am going abroad again next February - would this give me enough time (5 months) to complete all proceedings against him should I go to court? Would my not making a claim until September work against me, even though I can prove that I have been abroad for my PhD?
                  File the forms now. When the court is ready, it will send you an 'allocation questionaire', on which you can tell them dates you will not be available. Hopefully your hearing would be in September, allowing you a few months to enforce any judgement.

                  Comment


                    #10
                    As Snorkerz says. Send the letter before action, then escalate if it still isn't resolved.

                    I'm a Manchester agent but have never heard of this company, where were they based? Is Lewis Spencer the guy's name or the agency name?
                    <a href="http://www.manchesterpropertygroup.co.uk/" target="_blank">Manchester letting agents</a>

                    Comment


                      #11
                      Hi Snorkerz and jrsteeve,

                      Thank you both for your time and your advice. I will get my SU involved - I think that they offer both advice and perhaps representation (I think with the Manchester Uni Law dept.), but I am waiting for them to reply to my email.

                      The agency has now dissolved (est. 2008) - the agent's name is Sheraz something, I never found out his surname, despite asking the landlord repeatedly. The agency was based in Spinningfields, in one of those new purpose-built offices, but has/had a registered address in Salford, according to the company register. The agent has now set up a new company - hmmm, sounds dodgy and a recurring activity to me (dissolve one company and immediately set up another). The agent is a nasty piece of work, though - as I said above, I had to contact the police because he threatened me.

                      Re the contract - I think it does look a bit amateurish, because the logo looks like it's been lifted from the website and copied, so I don't know how the court would react to it. But I can prove from bank statements that the money for the deposit came out at that time. Is it correct that when I go to court, it is about the non-protection of the deposit which is my main gripe and my main legal argument, so anything he has to counteract this (the 'theft', the 'damage') is a separate legal case, and he would have to countersue me for this at a separate court claim?

                      You can't insist on receipts, because you have to pay for the value of the damage done, not the cost of repairing it. It is a subtle difference but essentially means that if the landlord is willing to continue using the 'damaged' item, he doesn't have to get it repaired, but it would still be worth less.

                      I think that I read on another thread that a piece of furniture or a carpet, for example, is only worth its 'lifespan' - ie, if a carpet's 'life' is 5 years, and is 2 years old when the tenant damages it, then the carpet itself is only worth 3/5ths of the original value of the carpet. Does the LL then have to provide original receipts for the items in the house, to demonstrate age and 'lifespan'? Does the lack of inventory mean that this would be impossible to do, legally?

                      I do want to get a witness statement from the neighbour, but he is a friend of the landlord - is there any legal procedure I could use in a civil case whereby I could legally 'force' him to provide a truthful witness statement, or would I be reliant on his 'good will', in which case he will probably support his friend.

                      Also, is the onus of proof on me to prove that the landlord did not turn up on my leaving date to collect the keys, or does he have to prove that he did? There is a CCTV camera installed in the entrance to my building which shows all the driveway - how do I legally require access to this, to prove that he did not arrive?

                      Thanks again for all your help - I really do appreciate it.

                      Comment


                        #12
                        Originally posted by ecn1982 View Post
                        Is it correct that when I go to court, it is about the non-protection of the deposit which is my main gripe and my main legal argument, so anything he has to counteract this (the 'theft', the 'damage') is a separate legal case, and he would have to countersue me for this at a separate court claim?
                        You can claim for either:
                        1. the deposit amount (this would be allocated to the small claims track, where court fees are low) or
                        2. the deposit amount plus 3x deposit for non-compliance with deposit protection (this would be allocated to the multi track and, unless you qualify for reduced court fees, the fees would be well over £1,000, and you'd be exposed to the defendant's legal costs, therefore you need to get legal advice before bringing such a claim)

                        The defendant would probably enter a defence and counterclaim, and this would be part of the same case, not separate to your claim.

                        I think that I read on another thread that a piece of furniture or a carpet, for example, is only worth its 'lifespan' - ie, if a carpet's 'life' is 5 years, and is 2 years old when the tenant damages it, then the carpet itself is only worth 3/5ths of the original value of the carpet. Does the LL then have to provide original receipts for the items in the house, to demonstrate age and 'lifespan'?
                        The percentage portion is applied to the cost of the replacement item. Using your example, LL could claim approx. 60% of the value of replacement (assuming original item damaged beyond repair) with an item of similar type/quality. The LL would need some evidence of the type/quality of the original item, such as an inventory check-in report/photos, not necessarily original receipts.

                        Does the lack of inventory mean that this would be impossible to do, legally?
                        Not impossible, but probably very difficult unless LL had other good evidence such as a receipt for a new sofa and proof of when it was delivered to the property.

                        I do want to get a witness statement from the neighbour, but he is a friend of the landlord - is there any legal procedure I could use in a civil case whereby I could legally 'force' him to provide a truthful witness statement, or would I be reliant on his 'good will', in which case he will probably support his friend.
                        You can't force the neighbour either to give a statement or to ensure he tells the truth in it. He would have to sign a statement of truth at the end of the statement and, in theory, if he lied, this would be an offence - in practice, I doubt he would suffer any consequences even if the lie were to be discovered, particularly in the context of a civil claim of this value. The neighbour would just say, oh dear, I made a mistake.

                        Also, is the onus of proof on me to prove that the landlord did not turn up on my leaving date to collect the keys, or does he have to prove that he did? There is a CCTV camera installed in the entrance to my building which shows all the driveway - how do I legally require access to this, to prove that he did not arrive?
                        Proving this point has no relevance to your claim. Either LL can prove damage or he can't. His presence or absence at check-out demonstrates nothing. Don't get bogged down with side issues like this and remember this is not a criminal case, where allegations must be proved 'beyond reasonable doubt', but a civil claim which will be judged on a 'balance of probabilities'.

                        Comment


                          #13
                          OK, thank you very much for your advice.

                          Comment


                            #14
                            It probably won't help but it seems he's not too bright for a scam artist. Checked out his domain name and it shows all of his details: http://whois.domaintools.com/lewisspencer.com

                            Good luck!
                            <a href="http://www.manchesterpropertygroup.co.uk/" target="_blank">Manchester letting agents</a>

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