Deposit funds have gone missing TWICE!

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    Deposit funds have gone missing TWICE!

    Hi,

    As I have numerous problems with my existing tenant which can't be all put into one post I will probably be starting numerous threads! This one regards the deposit.

    When my current tenant moved into the property, he gave me a cheque for the deposit. I duly took it and registered the tenant and the tenancy with the DPS and sent off the cheque. A few weeks later, they wrote to me to state that the cheque had not been received. I contacted the tenant and advised him to check his bank statements to confirm that the cheque had not been cleared. It had not. I then requested him to cancel this cheque and send another himself to the DPS and gave him the address. This he said he did and I have no reason to doubt him. About 5 or 6 months ago, the DPS wrote that the registration of the tenancy would be removed as no deposit had been received. I emailed the tenant and asked that once again they check their bank statements and let me know the situation. There was no response, although other points in the same email were dealt with.

    In the meantime, the landlord/relationship situation went through a very sticky patch and I did not pursue the matter. The tenancy has now lapsed into a periodic. As they are now stating that they are leaving the property within the week, I requested that they look again at the problem with the deposit cheque to which I have received the most astonishing reply, which I will copy and paste if required. In essence he is insinuating that the tenancy may no longer be valid as I have failed in my duty to protect his deposit - I think he is getting mixed up between the actual cheque and the deposit here! - and that it is not his problem to sort it out. Can anyone give their thoughts to this? - apart from the obvious one, which is that I am dense for not pursuing this more vigorously in the first place.

    #2
    You are saying you sent a third party cheque to DPS. This did not clear. A second cheque from the same source did not clear or did not get sent.

    Have you noted a 'deposit received' on the paperwork the tenant has?

    has the tenant given you notice that he is leaving?

    Does that notice run to the end of a monthly rental period.

    Is there any rent owing?

    You have probably learned by now that deposits should be in cash, so I wont go on about that, but if it is paid by cheque the least you should do is cash the cheque yourself before relying on the money for something as important as the deposit.

    As I have numerous problems with my existing tenant which can't be all put into one post I will probably be starting numerous threads! This one regards the deposit.
    Don't do that! Keep all your concerns about this tenant within this thread, that way people advising you will be able to have a fuller picture of the problems.

    Don't worry about whether the tenancy is valid or not, it is valid. You do seem to have an unusual problem though.
    I offer no guarantee that anything I say is correct. wysiwyg

    Comment


      #3
      Originally posted by cazbym View Post
      When my current tenant moved into the property, he gave me a cheque for the deposit. I duly took it and registered the tenant and the tenancy with the DPS and sent off the cheque. A few weeks later, they wrote to me to state that the cheque had not been received. I contacted the tenant and advised him to check his bank statements to confirm that the cheque had not been cleared.
      In addition to what JTA has said...
      Was the cheque definitely payable to the DPS (not you)? If it was, maybe it bounced or was stopped by the tenant? Either way though,I'd have thought there would be some record of this at DPS rather than them simply telling you the funds hadn't been received. Knowing the DPS it's entirely possible though! Other than that, it might be a genuine 'lost-in-the-post' scenario; though i'm always sceptical about that...

      I then requested him to cancel this cheque and send another himself to the DPS and gave him the address. This he said he did and I have no reason to doubt him.
      Well DO doubt him - it's perfectly obvious that he didn't send it in, although you have no proof so you can't act on it and accuse him of lying.

      he is insinuating that the tenancy may no longer be valid as I have failed in my duty to protect his deposit - I think he is getting mixed up between the actual cheque and the deposit here! - and that it is not his problem to sort it out.
      Well, presumably he is in the fortunate position of having paid no deposit due to your 'unusual' processes; therefore he can have no complaint about you failing to protect it!

      If you have indeed failed to protect the deposit, then this would have no effect on the validity of the tenancy although potentially you could be vulnerable to legal action for not protecting it.

      In the unlikely event that the deposit has been paid, then yes you are responsible for ensuring that it's been protected. I would ask him to provide proof that he has paid the money, and that his cheque was cashed by the DPS. Put it all in writing to cover yourself if ever he tries a frivolous court case.

      Comment


        #4
        I do not believe that I did mark his paperwork with "deposit received".

        In response to my advising the tenant over the phone that I was about to give them the statutory 2 months notice to leave, the wife said that this was quite fortuitous as they had been about to sign a new contract for their own property and it gave them time to prevent this from going ahead and retain the property for themselves to move back into. Had this new contract started they would have been unable to find alternative rental accommodation as the husband was currently unemployed and would not be able to pass the credit checks. This conversation occurred on 10th August and was followed by an email on 12th with an attached document dated 10th August stating that they were giving notice to end the tenancy and would be moving out as soon as possible. Due to the ambiguity of this letter which I will attach if appropriate, I did some homework and replied with an email on 19th August explaining that they really needed to give an end date and that the letter needed to be dated 20th or 19th, (I honestly wasn't sure which, and that their tenancy would run until 20th or 19th of September - (rent is paid monthly). I also re-queried the situation with the deposit and was told that they couldn't look at it at the moment as they were away, but had definitely issued two cheques. (This I am sure that they did). I then received an email on the 19th (the two emails were obviously sent at the same time and crossed in the post so to speak) stating that they would be leaving the property on 25th and would we please arrange for the windows to be removed to enable them to remove their furniture. I explained again that they needed to give one month's notice dated from the end of the term and could not accept an end of tenancy on 25th August to make sure that they understood that they were contractually obliged until September. In a further email they explained that their leaving date would now be the 26th. I also explained that as my husband would be away with work for the following 2 weeks that they would have to contract a suitable person to remove the windows, but they should ensure that the contractor had suitable experience and insurance in place. They have taken extreme offence at this and have now confirmed by email that they are contracted until September with an astonishing document received last night. So although I have not received formal notice, I am now more or less happy with the date. It is the preceding events and the aftermath which I am less happy with.

        With regard to rent owing, during a boiler breakdown during February of this year, when I did everything possible to ensure a repair, and which descended into a farce, the tenant in a fit of temper told me I was useless or incompetent (or words to that effect) and said in a text that he would be deducting 50% of his rent for the inconvenience. As I was sat with his wife at the time who was recovering from a major operation whilst waiting for yet another engineer from Ideal Boilers, I explained to her that I was going to let the comments pass and ignore it. This I did. The next month's rent was paid 1 day late and reduced by 50%. I did nothing, just gritted my teeth and bore it. Earlier this month, I arranged the annual Gas Safety check. The engineer passed the hob, which was new on their arrival, but was concerned about the way the casing was sat on the boiler and after getting a second opinion, condemned it. I received a phone call from the engineer, who I instructed to arrange a new boiler. (I am insured with Ideal Boilers on a maintenance contract, which route I chose not to go down in the interests of a speedy resolution. This was followed closely by a phone call from the wife explaining that they would be moving out whilst there was no hot water and that her husband would be deducting rent for every day they were without water. It was at this point I explained that we would be issuing them with 2 months notice. Something we should have done back in February, but I convinced my husband that we were being rash. The rent that was due on 20th of this month has not been paid and the tenant has now indicated that he will not be paying it until the end of the tenancy and will be deducted for 10 days without hot water and also deducting for the costs involved in the removal of the windows. He has also explained that there will be some damage, but nothing more than would be reasonably expected during a move, but that he will take every care with the property.

        Quite frankly it had never occurred to me to cash the cheque, or to ask for cash and I honestly thought that I had to have it made out directly to the relevant deposit scheme. The point being that the landlord never had his hands on the money personally. I have to say, there is almost no doubt that it is the deposit scheme that has fouled up rather than the tenant, but this doesn't help me. All rent due has been paid on the due date or nearest possible with the exception of the two instances mentioned.

        In order for all of this to make sense I think I will have to remove the identifying features of two emails and attach them with a little background history. And then wait for the flurry of clarifying questions! I will wait for your advice. I am beginning to think I really need legal help, but having rung around yesterday and been quoted £200 per hour plus VAT, I am frankly stuck.

        Comment


          #5
          I guess it comes down to the agreement was a deposit paid, I guess he would have to prove a deposit was paid, which if the cheque was never cashed, he may have only a weak case in court.
          But in these situations, without specialist legal advise, I guess your T and his lawyers will just try and bully you.

          What does he want, is it he wants leave the P early or is their rent owing and damage. Depending on how much it going to cost you, I would swallow your pride and let him go as soon as possible, as it not worth the sleepless nights and the Lawyer bills. But get a lawyer or look at other posts on this forum for a surrender document.
          Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

          Comment


            #6
            Uploading Attachments

            I do not seem to be able to upload any attachments. It keeps saying upload failed. They are not bigger than the specified limits, but I'm not sure what width etc means. Any clues?

            Comment


              #7
              Originally posted by cazbym View Post
              I do not seem to be able to upload any attachments. It keeps saying upload failed.
              Newbie accounts are restricted in functionality for their first 10(?) posts as a means of deterring spammers - possibly the uploading of attachments is one thing which is currently blocked for you?

              Comment


                #8
                Is there anyway I can display an 2 emails from the tenant with all identifying features removed of course.

                Comment


                  #9
                  Originally posted by cazbym View Post
                  Is there anyway I can display an 2 emails from the tenant with all identifying features removed of course.
                  Just copy and paste the text into your post!

                  Comment


                    #10
                    Tenant (who has given me 6 days notice of the date of departure then moving it ahead by 1 day) wants to remove sash windows on listed building in my absence (unable to attend due to prior commitments), and says will deduct any costs incurred from the rent, which he has not paid this month. I have asked that he ensures the windows are removed by somebody with suitable experience and insurance. He then asked me to provide somebody at my own expense. Says he will pay rent once he has left. Has already deducted half 1 month's rent during February without approval from myself and has now said he is also deducting money for the 7 days he has been without hot water whilst boiler was replaced. Help. All sorts of accusations being thrown at me.

                    Comment


                      #11
                      Originally posted by cazbym View Post
                      Tenant (who has given me 6 days notice of the date of departure then moving it ahead by 1 day) wants to remove sash windows on listed building in my absence (unable to attend due to prior commitments), and says will deduct any costs incurred from the rent, which he has not paid this month.
                      why is a tenant removing sash windows from your property? did tenant install this window? even if he did, was that with your agreement. Sorry, but this is not a normal occurence and it seems there's more to this than meets the eye?

                      Comment


                        #12
                        Sorry, didn't explain fully. Tenant has decided to leave property on 25th of this month later changed to 26th of this month. This in response to our advise that we were on the point of issuing 2 month's notice. Very glad they are leaving. In an email dated 12th they advised that they would be leaving asap and were giving notice. This email did not say how much notice or give a date. I asked for clarification in formal letter. They stated did not need formal letter and that I was just being awkward. On 19th they gave date of 25th and asked that we attend to remove 2 sash windows to enable removal of their furniture, which we did on their installation at the property. We explained that we were not able to attend on that day, being such short notice. Their response in a very long email accusing me of allsorts (ALL of which are incorrect) they have now confirmed that their tenancy will expire on 20th September, which is correct by 1 day, should be 19th, but have also stated loads of other things which are legally suspect.

                        Comment


                          #13
                          Start of Problems

                          This is the complete (minus salutations) email sent to me back in February of this year. A* being the landlord my husband, B* being myself, C* and B* being the joint tenants - husband and wife.

                          "can you please tell me the name and Corgi/Gas Safe number of the chap that A* brought to repair the boiler this weekend - ideally I'd like to see a copy of his in-date certification paperwork.

                          The heat exchanger has now been fitted but there are some other outstanding defects that need to be addressed urgently to restore the boiler to proper working order. Today's repairer is going to provide details in due course and I would ask that these repairs are scheduled as soon as is reasonably practicable to ensure that we have a working and more importantly SAFE heating system.

                          You should know that 2 independent professionals have confirmed our suspicions that the plumber who attended this weekend is and was unsafe to carry out this sort of work. And in failing to immediately TAG OUT the boiler to prevent it's continued use when it was clearly dangerous he put everyone's lives at risk through both fire and carbon monoxide poisoning - especially in leaving the evidently dangerous boiler to run ALL NIGHT because he didn't reset the timer or clock after cutting the power for fault finding!

                          If he is qualified I intend to report him to gas-safe (and perhaps the HSE) and they will most likely remove his certification and probably prosecute him for negligence.

                          If he was not qualified then you and A* may also be liable for prosecution for knowingly using someone that was not competent to carry out the works. I assume that you had evidence of his certification before engaging him?

                          I'm sure that you understand this is a very serious matter and I welcome your cooperation in ensuring that no more lives are put at risk by taking immediate action to prevent recurrence of this dangerous incident. We have of course taken photos and documented the events of the last few days to help any investigation.

                          I look forward to your early reply and will decide how to proceed over the coming days once I have taken appropriate advice.

                          We pay our rent and look after your property as though it is our own (even fitting new carpets) and I expect you in return to carry out your duties as landlord very diligently to ensure that the property is safe for us to rent.

                          Comment


                            #14
                            If you paid for the window to be removed when they moved in, I guess due to their would be no other way, other than remove the windows again to get their stuff out when they move out, I guess you would should pay.
                            The heating back in Feb, If he got something in writting that you agreed to him reducing the rent due to the heating, then I guess you have to live with it, if you didn't make him pay.

                            Of course they need to give some sort of date, otherwise T could give that notice anytime and move out when they want. There are rules that LL have to follow and there rules the T need to follow, this is not it.

                            But I would say let them go, as seem to want to try it on, and get the P back on the market as soon as possible, but get the P surrendered correctly.

                            Good Luck
                            Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

                            Comment


                              #15
                              This is their response to my assertion that nothing illegal had been done.

                              Hi B* and thanks for keeping up the pressure to get this sorted.

                              I understand from D* that you kept he on the phone a long time
                              (standing) which you weren't to know. Please call me rather than D*
                              regarding this matter and allow her to recover.

                              As a landlord you need to be up to speed with your legal responsibilities -
                              the law accepts no excuse and both fines and prison are possible
                              consequences of not knowing your legal obligations. I am not saying any of
                              this to worry or upset you - I am trying to help. No-one has died but I
                              want you and A* to learn from this and make sure you don't repeat the
                              error again.

                              The Health and Safety Executive website is a good place to start:
                              (inserted link to government gas law website)

                              You may need to provide access tomorrow as we will all be out.

                              I've reset the boiler and it seems to have re-lit the pilot light etc but
                              clearly all is not well so let's get it fully mended tomorrow so we can move
                              on.

                              You must NEVER allow anyone not gas-safe registered to touch any gas
                              appliance (see this cut and paste from the HSE site):

                              What are my duties as a landlord in relation to gas safety?


                              You have duties under the Gas Safety (Installation and Use) Regulations
                              1998 to arrange maintenance by a Gas Safe Registered engineer
                              (inserted link to gas safe register website) for all pipe work, appliances and
                              flues, which you own and have provided for your tenants use. You must also
                              arrange for an annual gas safety check to be carried out every 12 months by
                              a Gas Safe Registered engineer. You must keep a record of the safety check
                              for 2 years and issue a copy to each existing tenant within 28 days of the
                              check being completed and issue a copy to any new tenants before they move
                              in.

                              Best regards,

                              C*


                              On 05/03/2010 14:56,
                              wrote:

                              > Hi D*,
                              >
                              > I am unable to get through to you on the phone, but thought you should
                              > know straight away that WarmSure have just rung to advise that the
                              > engineer will be attending tomorrow morning to fit the remaining parts
                              > required for the boiler. He will be phoning me prior to arriving. I
                              > will of course phone C* as soon as I hear from them on the landline
                              > and will be attending the property whilst the work is carried out. So
                              > if C* is not available or has not returned, I will be able to grant
                              > access. Hopefully, this should result in a boiler that works. I have
                              > also been assured that both of the current faults, the diverter valve
                              > and the condensate trap are not safety issues, although they will cause
                              > an LF fault.
                              >
                              > With regard to the email I have recently opened, I will just say, I
                              > believe that neither I, nor the man who came round on Saturday have done
                              > anything wrong, and only acted with concern for your comfort. Indeed, I
                              > have done everything in my power, to get this resolved to a satisfactory
                              > AND safe conclusion.
                              >
                              >B*

                              Comment

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