UKC

I know someone who moved flats 5 months ago. He had paid a months deposit and didn't cancel his rental standing order in time so overpaid his rent by 2 weeks. The rental was organised by a letting agent acting on behalf of the actual landlord. He has a paper trail and the letting agents now agree he is owed the money but the actual landlord seems to be ignoring the obligation to return the money. He's gone to the property ombudsperson who has just agreed to take on the case. Do deposits have to be held by a 3rd party organisation?

Any advice on how to proceed? It is about £1,000 owing. Is it worth getting a solicitor involved? Small claims court?

thanks

mike

The deposit should have been held in a government-approved tenancy deposit scheme (different ones in England/Wales and Scotland). The tenant should have been notified of the scheme it was held in. As far as I'm aware, each TDS has its own dispute resolution process. Assuming you're in England, the guidance for what to do if it wasn't held in a required scheme is here:

https://www.gov.uk/tenancy-deposit-protection/if-your-landlord-doesnt-prote...

I'm not sure of the situation in England (as opposed to Scotland) but I think if your friend went through a legitimate letting agency then the agency has a responsibility to resolve the deposit issue regardless of what the landlord may or may not do. I don't think they can just pass the buck onto the landlord and blame the landlord for not returning the money.

Overpayment of rent sounds more awkward to resolve. Was that paid via the agency or direct to the landlord? If the latter, that sounds like effectively your friend just unintentionally sent money to somebody that he now wants back, and I fear that might be difficult to resolve. If it was paid via the agency, that sounds more resolvable.

The overpayment I can't help with, but the deposit should have been returned ages ago. If the agency or landlord has a dispute regarding the deposit they should have provided evidence of this to the deposit service, and then the tenant can agree it disagree. If the landlord doesn't provide that in the timeframe required you should get the full deposit back without needing to involve them further.

If the agency aren't doing their job the buck rests with the landlord. It doesn't matter who took the money, the agent is acting on behalf of the landlord, so your problem is ultimately with the landlord.

If the deposit wasn't protected properly there are proforma letters available to take action. I've done this successfully 4 times(!) in the past decade. Every time the landlord returned double the deposit rather than face further action, as the law is very clear.

If the deposit was held in a deposit protection scheme have they logged into their account and requested the deposit is returned?  The onus is on the rentor to formally request the deposit is returned. (at least in England).

• Ask the letting agency to state clearly *in writing* whether their contract with the landlord makes the landlord liable to pay you back, or them, and provide evidence. Tell them you need to know this because you need to name the correct party in the County Court small claims process. If the letting agency is liable but fobbing you off to the landlord, then this step might be enough.
• Communicate only in writing through the whole process, not over the phone.
• If the landlord is liable, and has ignored a request to mediate with the ombudsman, send a letter to the landlord outlining the dispute and how much is owed, and tell them you will escalate to the County Court small claims process if it is not paid within 14 days.
• If this is ignored, then put in a request to the small claims process (this costs a few hundred £), notify the landlord by letter that you have done so, and follow the process. https://www.gov.uk/make-court-claim-for-money
• The court will give the person about a month to reply, and then will offer a pre-court mediation service.
• If they continue to ignore it, or don't agree at the phone mediation session, the whole thing will then grind its agonizingly slow way through the court process ... but you should get a court date in about 6 months, and at the hearing, a court order to pay the money back in about 2 weeks (potentially with interest and your small claims fee).
• You do not need a solicitor for this - in fact neither party is allowed to bring a solicitor into a small claims process. The process is slow, but it does work (I got most of the repair money paid back, several £'000s after a faulty car sale).

Broadly agree with this.  A couple of wrinkles though.  It's quite common for the court to rule in your favour...and still not get the money.  The only impact is on credit score (a CCJ against) and the landlord may not care - yes I've been there.  And don't imagine bailiffs will help.  The courts have astonishingly little real power it turns out

Yes, I might have got lucky. Mine was actually a pre-hearing, where the deputy district judge dug into the facts a bit, explained to the guy that the burden of proof was pretty much all on his side, he was unlikely to win, and it was probably in his interest to negotiate a settlement there and then rather than go to a full hearing and end up probably having to pay all the court costs plus cost of expert witness, etc. So we haggled and settled on a bit less than I'd paid for the repairs but most of it - which was then formalised as a court order he'd already agreed to in front of a judge. Think he was quite reliant on credit to run his business, so the threat of the CCJ (plus the judge mentioning bailiffs going round and taking cars off his forecourt) seemed to concentrate his mind a bit, he paid up 2 weeks later.

Lots of good advice here, but just to add my 2 cents on the solicitor question: No. Absolutely not. I once had a rent disagreement and asked the family solicitor about involving them, they told me their specialist in that area was £300 per hour. Honestly I didn't even write a reply because I was too scared I'd get billed for the time it took them to read it.

Thanks very much for all the good advice. I have just found out that to get money from a deposit protection service it needs to be requested within 3 months so as the landlord has spun this out to 5 months he can't do this simple solution. Worth being aware of if you know people who are struggling to get their deposit back. Also though not applicable in this case but if you are a lodger then the deposit will not be protected.

thanks again

mike

Was it definitely held in a protection scheme? From your initial post it sounded like it might not have been. If it was, the tenant would have had some contact from the DPS provider when the deposit was first put into the scheme (I think the landlord has to do this within 30 days). If they weren’t ever informed that the deposit was protected and asked to confirm their details then chances are it wasn’t and the landlord is at fault. 

I'd just fire off a recorded delivery letter to the landlord and the agency, advising they've 7 working days before you go the legal route and to the local press, it's upto them how they resolve this, it's your rent and deposit. 

Phone calls are ignored, emails taken less seriously, old school techniques often work best. 

Agreed. Surely the whole point of paying a letting agent is that they liaise with your landlord and ensure you are both protected.

And tell them it’s theft as well.  

Yes. The agency has legal obligations to both parties. Under or over paying of rent and deposit management should be near the top of that list, just after safety of the property itself.