Deposit retained by tenant find only agent?
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by Readers Question

A week ago

Deposit retained by tenant find only agent?

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Deposit retained by tenant find only agent?

Does anyone know what the legal position is regarding an agent retaining the tenants deposit when they have been employed for a tenant find only?

I already have an agent that manages my property and protects the tenants deposits, however, this agent claims that their procedure is to protect the deposits themselves through the DPS even with a TFO agreement.

I’ve used other agents in the past for a TFO and they have just forwarded the deposit to me, leaving it up to me to protect.

Many thanks

Adrian

Comments

Neil Patterson

A week ago

Hi Adrian,

Good question and maybe as they are finding the tenant they want to make sure the deposit is protected properly so there is no come back on them?

I assume it has been protected and Prescribed Information given?

Rob Crawford

A week ago

Hi Adrian, it can work both ways. The way that your agent operates should be clear within the agreed terms of business that you will have signed prior to them advertising your property. If the agent has protected the deposit, you should demand proof of this, otherwise any potential eviction will be complicate and you could be fined if it went to court.

Reply to the comment left by "Neil Patterson" at "17/07/2017 - 11:12":

As I am the landlord, I wouldn't have thought there would be any come back on them.

I have requested a copy of the certificate to show the deposit is protected, but I have yet to receive it. I've got the current management company chasing the tenant to find out if they have a copy as no copy was supplied to them with the copy of the AST. It also doesn't help the fact that, over 3 weeks into the tenancy, I still haven't received the initial rent. But that's another issue, I'm more concerned about the deposit.

Reply to the comment left by "Rob Crawford" at "17/07/2017 - 12:10":

The agreement was verbal as there was so many issues within the full management agreement, that I wasn't prepared to sign it...hence the TFO

Jay James

A week ago

Reply to the comment left by "Adrian Matthews" at "17/07/2017 - 12:20":

You have seen the written contract and continued to trade with the agent. It may therefore be that you are bound by its' terms.

This argument has been successfully used in English & Welsh courts (I do not have the references) to bind parties to a contract. Maybe the lawyers and barristers reading this site can comment on this point.

Isabel Dove

A week ago

Hi Adrian
If they have the deposit protected in the custodial scheme operated by the DPS, they can easily transfer this deposit to you in an account set up with the same scheme in your name.
Please ensure they have issued the prescribed information and that they did it originally within 30 days of the tenancy commencing.
The control and release of the deposit will then be with you. Visit https://www.depositprotection.com/registration.aspx?txid=enVJ4V0jy0qF7z9aL0EfHA to set up an account in your name. You will then have your Registration ID number for them to use to transfer the deposit.
I hope you get it sorted quickly.
Raylets

Reply to the comment left by "Isabel Dove" at "17/07/2017 - 15:38":

Thanks Isabel. Will do. I have 4 days left.

Annie Landlord

A week ago

This happened to me once. The complication came when I evicted the tenant (the only time I have ever evicted one) and discovered the original agency had closed down. Fortunately the manager had joined another agency and I was able to track him down and eventually get the deposit transferred into my name, as I was already registered with the DPS. It was just a paper exercise but I wouldn't let an agent protect a deposit now without asking for confirmation that not only was it protected, but the amount protected and signed confirmation from the tenant that they had received the prescribed information.

Kate Mellor

A week ago

Hi Adrian, you can use the Shelter website to search deposits held in the different schemes if you know the tenancy details, that way you can confirm the deposit is actually protected in the scheme.

DPS doesn't issue a certificate in the same way as other schemes for you to serve your tenant. They issue confirmation direct to the tenant and the agent/landlords certificate which is emailed out contains your repayment ID, so this should never be provided to the tenant as this would give them all of he information needed to reclaim their deposit at will. Perhaps this is why they haven't given u a copy.

As someone else has already advised you should insist on the transfer of the deposit to yours or your managing agents DPS account post-haste. They can't have any argument with this as the deposit remains protected at all times.

If you can't confirm that the deposit was protected you might wish to consider lodging a deposit yourself on their behalf while you still have time & reissuing the prescribed information. This will protect you from being liable to your tenant on top of the potential loss of money paid by the tenant to the agent if it turns out they've acted improperly. This should be able to be resolved at a later date if there turn out to be two deposits. Just ensure you have full written records of all transactions, correspondence (verbal or otherwise), & bank statements to prove the position should you need to.

I would also ask the agent for a copy of their current professional indemnity insurance & their client money protection insurance to check you're covered if they've failed in their duties.

.

Rob Crawford

6 days ago

Hi Adrian, if you find out that the letting agent is not registered with an ombudsman or you feel they are acting as a rogue agent your local Council Private Rented Sector (PRS) team would find this of interest. An agent in Bristol has recently been successfully prosecuted by the Council for not being registered with an ombudsman. The DPS do issue an e-mail to the agent / landlord that confirms their receipt of the deposit into their account, there is no reason why this e-mail cannot be shown to you. The Certificate is then sent soon after with the code that should not be shared.

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