I’m at my wits end, I have a particular hostile tenant who has made my life a living hell.
I have a property that my Uncle manages, he used a letting agent to let to tenants. Then Agent said the deposit had been protected and a tenancy deposit certificate was received by the tenant (I’m not sure if this was received in the post or by other means.)
During the tenancy we had told the tenant we want you to pay us direct rather than the letting agent. The tenant refused and said she would only pay the agent. Her attitude towards my Uncle and I has always been hostile.
Roll on a few years to Oct 2018, tenant had paid agent rent, the agent then failed to pay us rent. We chased the agent continuously, his shop was closed. We told tenant, agent is not paid us, next months rent you must pay us directly. Tenant refused said contract is with agency and not you (just coming up with nonsensical excuses.) When next months rent date approached and agent shut up shop. I pleaded with tenant to pay us direct. Tenant rings Agent - Agent says I’m coming round to pick up the rent! The tenant handed over the rent for that month!
When a sent a Section 21, then the tenant started to take things seriously, even then she was hostile, said she would pay anyone else but me!
Looks like she then started taking some legal advice and was now ready to pay me direct and sign new tenancy agreement.
When enquired about the deposit she produced a certificate - however, when she rang up, there was no such deposit protected!
The rent has been fixed for over 5 years and has not been increased. I have had to spend a lot money recently and was looking to increase the rent. She has refused and is now asking where her deposit is and if it is protected?
Any help here please, from what I knew the agent had protected the deposit as tenant said they had received a certificate.
What are my options? as she owes my 1 months rent - as she paid the agent when I expressly wrote to her saying I have broken all relationship with the agent and that she is to pay me directly - she ignored this and paid the agent - can I say this 1 month rent she owes me is the return of her deposit?
Or can I protect her deposit now (using my own funds)?
Please help.
NEVER NEVER NEVER use any agent except openrent. You cannot trust anyone but yourself … YOU always have to check the deposit is protected , by checking with whoever it is supposed to be with… Do all paperwork yourself.
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You’re in a hole so stop digging. Don’t give her a new tenancy agreement until you’ve got to the bottom of what is going on.
Firstly, do you have a tenancy agreement? If so, who is named as landlord?
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Yes, there are several, the original from 2013 which was signed by the letting agent on behalf of the landlord - the letting agent has put my uncle’s name instead of mine as the landlord - and another TA by the letting agent in 2016 again on behalf of the landlord - again my uncle’s name instead of mine.
My Uncle received a letter purporting to be from mydeposits saying the deposit had been protected and giving all the necessary details - so we thought it was all genuine.
In Jan 2019, the tenant finally decided to sign a new tenancy with me - I left out any mention of a deposit.
I had a separate acknowledgement form which along with mentioning the tenant had received all the prescribed docs (EPC, How to Rent, Gas Cert, EICR) mentioned that they had a previously deposit protected by mydeposits.
We did everything in good faith.
I am wondering if I can use the missing month’s rent as saying this is your deposit returned and there is no further deposit.
Had the tenant already started paying rent to you before they signed the 2019 TA with you? This could be very important so please check. Also what exactly did this separate form say about the deposit.
Unless you made clear at the time that the missing months rent was being considered the return of the deposit it wouldn’t hold up in court.
Is the deposit your main concern? If you were not involved in any of the prior tenancies, (other than owning the property), you may not be liable, but answer the questions above first.
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Deposit liability always falls with the landlord, whether registered by the agent or not ( ref Tessa S).
I only use estate agent for adverts and viewing.
I look at all the referencing etc.
If we get tenants through an estate agent I do all paperwork myself to prevent problems. I even ask the tenant to pay the deposit to me directly and register it immediately.
Off the record if deposits are not registered within 10 days if it goes to court it may not be looked upon favourably. I heard that at a Landlord Law course ( I can’t remember the speaker that said that in 2019).
Our estate agent was not even transferring monies to me to transfer till day 25!
.
Furthermore, the estate agent contract normally has a clause negating liability ( don’t know what consumer act would say to that?)
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No, prior to Jan 2019 TA I was not receiving the rent. On the separate form I had put:
• You have an existing deposit held with My Deposits certificate number: DPCXXXXXXX
• You have not provided the above new landlord with any new deposits
There isn’t anything agreed between tenant and myself as yet, but was hoping to get something agreed with tenant and get something signed to say no liability towards deposit or that deposit has been returned for missing months rent etc
Yes, deposit is the main concern as I understand tenant could take me to court and I would get fined heavily. Also if I need to evict tenant, I won’t be able to due deposit has not been protected.
OK, so I think the situation is complicated. Just going on what you’ve posted it appears that you may only have become the landlord in 2019 with a new tenancy. The landlord of an Assured tenancy doesn’t have to be the owner of the property. If its someone else then it is assumed that person has permission to let it unless this is contested. If you were not the landlord before this and couldn’t be considered an agent when the deposit was taken then I believe you would have had no liability for it at that time. However, you made reference to it in the form. There is also the question of when you became landlord and how the previous tenancies ended and the point at which you withdrew permission for other people to let the property and whether the tenants legally became your tenants at this point. None of that is clear and would probably be impossible to unravel on a forum. If it turns out that you took over her tenancy then you would inherit any liabilities.
I dont think you can make any claim against her for rent she paid to the agent which wasn’t passed on. That sounds the correct process on her part. However, if she decides to try and claim a deposit penalty against you, you will need specialist legal advice, (not just a high street solicitor) if you want to defend it.
I think that in that blog post its clear who the landlord was and that the Agent was acting as his representative. Its less clear here and the situation is perhaps more analogous to a freeholder having no liability if a long leaseholder lets their flat.
Having said all that, its possible that a court would find gazelle to be the landlord as the arrangement between him and the Uncle/Agent was somewhat loose and open to interpretation. For safety sake, legal advice is needed on this one.
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Well big mess. First see a solicitor. Not bonding a deposit is a biggie. i was 3 days late bonding a deposit once when moving home. when they left 6 months later theywere canny and i got fined 3 times deposit plus deposit. bit harsh i thought but some judges like to shaft the landlord.
secondly dont keep communicating directly, its not helping, get someone to mediate and be prepared to hand the tenant a wedge of cash to get them out. if you dont get pragmatic about this they could be there forever esp during covid. tough love!
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Thanks David and all, (apologies was out y’day) I did not know that a Landlord of an AST doesn’t have to be the owner.
This is quite interesting and certainly looks like a card I could play. Which is in fact quite accurate.
I had no interest in the property (nor was I receiving any rent monies) till things started going wrong when the agent did not pay my uncle the rent in Oct 2018. My uncle asked me to step in and advise. My uncle was in receipt of the rent from the agent, I was not in receipt of any rent monies at this time. At this time I wrote to the tenant and introducing myself as the new landlord and owner of the property and said all ties with agent have been terminated and any future dealings should be done with myself.
The form itself, only I have a copy to prove that I did serve the prescribed documents necessary when issuing a TA.
Yes, certainly looks like I need legal advice on this.
Only reason this has kicked off and tenant questioning where her deposit is, that I tried to increase the rent. The tenant had paying the same rent since 2013 (to previous landlord). Rent is very low compared to market rents.
I will try and drop the increased rent a little bit in exchange for indemnification of deposit etc.
Guess I need to ring the insurance legal helpline see if they can provide advice.
Thanks.
Don’t do anything until you’ve taken legal advice. Certainly don’t DIY any legal document asking the tenant to waive their rights. Judges don’t usually like such contracts even when drafted by solicitors.
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Thanks David,
My insurance is up for renewal, are there any particularly good insurers with legal cover.
Thought I had legal cover, looks like I don’t - yikes!
You won’t be able to get legal cover for a pre-existing issue I’m afraid.
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