Letting agent claiming his not the legal owner and not owning up to deposit issues

by Readers Question

14:16 PM, 18th July 2016
About 2 years ago

Letting agent claiming his not the legal owner and not owning up to deposit issues

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Letting agent claiming his not the legal owner and not owning up to deposit issues

Can you please help. Is there a way of proving for sure who the owner is of a company ? We used a letting agent who did not in a timely manner deposit tenants deposit with TDS scheme.

Now the insurance company is saying that insurance is void as a result. But the letting agent is dusting himself off saying he was not the legal owner of the company.

What can be done?

Jiten



Comments

Neil Patterson

14:21 PM, 18th July 2016
About 2 years ago

Hi Jiten,

This sounds like you need help from our legal team.

Please see our Private Prosecutions page >> https://www.property118.com/private-prosecutions/

This is a good example of why Landlords need to band together and join the Property118 Action Group. Please see >> https://www.property118.com/fighting-for-landlords-letting-agents/88096/

Please also see our article "Fraudulent Letting Agents Rank High on National Scam Awareness Week Radar" >> https://www.property118.com/fraudulent-letting-agents-rank-high-on-national-scam-awareness-week-radar/88733/

Mark Alexander

14:38 PM, 18th July 2016
About 2 years ago

Hi Jiten

There are legal implications of a deposit not being protected within 30 days, namely that section 21 notice cannot be served to end a tenancy unless the deposit is repaid in full.

You can check who the legal owner of the property is via HM Land Registry. I believe it costs £3.

A companies house search will tell you who the key directors and shareholders of a company are. I forget now how much that costs but it isn't a lot.
.

Chris Clare

9:10 AM, 19th July 2016
About 2 years ago

Reply to the comment left by "Mark Alexander" at "18/07/2016 - 14:38":

Companies House BETA is free for the directors but shareholders are only listed on the annual return which will cost £1.00.

If someone needs this information I would be happy to help for free as we have more extensive tools for finding ultimate company ownership.

David Price

9:17 AM, 19th July 2016
About 2 years ago

Reply to the comment left by "Mark Alexander" at "18/07/2016 - 14:38":

Companies House searches are now free.

Howard Reuben CeMap CeRER

9:52 AM, 19th July 2016
About 2 years ago

A really useful free online tool that we use to carry out back office due diligence on new Clients and business partners, is https://companycheck.co.uk/ Enter the Director or Ltd Company name in the search box and then click on the 'structure' link. That then details the names of the shareholders and their latest shareholding percentage of the business as per the past set of submitted accounts. Lots of other free company info provided too.

Martin Rdg

10:22 AM, 19th July 2016
About 2 years ago

Another excellent reason why I always protect deposits myself.

Kate Mellor

13:29 PM, 19th July 2016
About 2 years ago

Hi Jiten,

I am assuming from my reading of your question that you are the landlord of a rental property and you have taken out a rent guarantee insurance (?) and your tenant has arrears(?) and now that you come to rely on this policy you find it is void due to the failure to protect the deposit within the required time frame.

Firstly, I would like to point out that you as the landlord will be held liable for this failure if the tenant were to pursue a claim for the failure to protect the deposit correctly. The penalty would be awarded against you and not the agent (this is my understanding) and would amount to a demand for you to repay the full deposit to the tenant and an amount in penalty of up to 3 times the deposit. This is regardless of any money the tenant may owe you (although I would suspect that you may be able to offset any proven outstanding debt owed to you by the tenant - you would need to confirm this with a legal advisor).

You need to assemble a record of all losses incurred by you for the failure of the agent to carry out their duties along with documents/letters evidencing these losses (this would included the above mentioned penalties if they were charged). Also, you should look at all paperwork provided by your agent detailing the services they have agreed to carry out on your behalf. Read over their signed agency agreement and highlight which terms you feel will cover this service.

The employee telling you that he is not the owner of the company is a red-herring. This is not relevant. You can make a claim against a company without reference to the names of the Directors. A company is a legal entity on it's own and the Director is not the owner as such. A Director can legally make binding decisions for a company, and potentially so can other employees, but a Director is only individually liable in certain circumstances and unless the agency in question is insolvent this shouldn't concern you.

Before taking any legal action the first important steps after those listed above are that you can show that you have tried to resolve the issue with the agency. This is essential and it should be in writing so it can be presented to a magistrate if necessary as a demonstration of what's known as 'Pre-Action Protocols'. Keep a record of all phone calls, (time, date, name of person, issues discussed and any conclusions reached.) This information can then also be provided in writing if necessary.

Write to the company, addressed to the manager of the branch you used and send a copy of everything to the Managing Director (use the title if you don't know their name) c/o their Registered Office address, this information is legally required to be displayed on any company letterhead (as are the Directors names I believe).

In your letter you should provide all relevant and necessary information to clearly explain your complaint. Don't be overly emotive, keep it professional and factual.

1) Clearly outline your complaint, giving all relevant details, names and dates and an outline of the consequences this has had for you.
2) Explain why you had the right to expect that this would be carried out by the agency by making reference to specific parts of documents which they have provided to you and any specific terms in their agency agreement with you. You could even argue that the agents action of protecting the deposit is proof that it was part of their duties and in undertaking to carry out this task, they have undertaken to carry it out correctly in accordance with the relevant legislature. ie the 30 day time provision.
3) Spell out the consequences this failure has had for you in detail and detail losses providing copies of the proofs of these losses.
4) Explain what it is you expect them to do to remedy this failure, ensuring that any demands reflect your actual losses and not a betterment.
5) Give them a specific, but reasonable timescale by which you expect to be contacted with a response.
6) Give them details of what action you propose to take should they refuse to remedy the problem. In addition to making a Money Claim Online against the company, this may include a complaint to any regulatory bodies they are members of, (check their documents / website to see which logos they are displaying).

Ultimately, if you fail to reach an acceptable agreement, you may choose to lodge a MCOL (money claim online) against the company by registering at http://www.moneyclaim.gov.uk, filling out an online form and payment of a fee.

Read through all the guidelines provided online and if you feel you have a strong, provable case for the claim and the company is solvent this may well be worth pursuing.

Once you have compiled all your documentary evidence, you may wish to take it to an expert for advice before submission.

All of the above should be carried out to try and resolve the complaint in your favour regardless of whether you do decide to pursue the matter in the court.

Best of luck with it, we can all make mistakes, but we need to hold our hands up. I would have thought a professional agency should have some type of professional indemnity insurance. This may be something you could ask them about ?

Jiten Karia

21:39 PM, 20th July 2016
About 2 years ago

Reply to the comment left by "Neil Patterson" at "18/07/2016 - 14:21":

thanks Neil, very helpful

Jiten Karia

21:43 PM, 20th July 2016
About 2 years ago

Reply to the comment left by "Chris Clare" at "19/07/2016 - 09:10":

Hi Chris

Again this is very helpful. Would really appreciate any help you can give and happy to cover any costs. Look forward to hearing from you. Thanks

Colin McNulty

8:10 AM, 24th July 2016
About 2 years ago

As mentioned, searching for all companies house records is currently free, here's the link you need:

https://beta.companieshouse.gov.uk/

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