A Question concerning "TDS, Agent, landlord & my rights"

[thegordo]

Ok, I moved into this property near 2 1/2 yrs ago. The person whom I signed the original tenancy agreement with was living in the property, acting as an "agent" for the landlord. They took a deposit from me, which was noted on the agreement, signed, dated. I did not know about the TDS as this stage. The "Agent" lived at the property, dealing with any untoward problems, and letting rooms to other tenants etc.

 

In Dec 2009 the agent decided to leave the property, keeping deposits they had taken from tenants including myself. The Landlord then stepped in to take over the role, and I signed a new AST agreement with them for 6 months. During this time I fell behind on rent payments, due to work & dss problems. The Landlord then decides enough is enough and issues notification of a section 8 notice, then another. finally ending up in a section 21.

 

So here-in lies my question, I have now recieved the notification from the court, inside it on Q9, (subsection a) is the question "A money deposit was received on or before 6th April 2007. to which they have ticked "NO".

 

A follow up to this is noted on the page " although the tenancy agreement provides for a deposit of two weeks rent, no deposit was actually taken by the claimant by the defendant.

 

So based on your wide-ranging knowledge of the system, where do you think I stand. This original "Agent" was surely acting in good faith for the landlord, and renting the property on their behalf ? They have gone down the country, no forwarding address, or contact number.

 

Is this Section 21 legally valid based upon the original deposit not being paid into an TDS, did the landlord have an legal obligation to ensure that all deposits were dealt with in the correct & legal manner by their assigned agent ?

 

I am obviously highly interested to hear your point of views, experiences, and the like, given that this is not a straight forward state of affairs. Thank you for reading and getting this far. Any help would be of course gratefully accepted.

 

G.

[raydetinu]

It seems teh deposit should have been prtected from day one and cetainly on the signing of the new contract.

However what does the 'new contract' say about the deposit,; how much etc. and it should also state that it will be put a tds scheme, well most do these days.

hav you got a receipt for the original deposit?

The LL is responsible for the deposit and putting it a TDS, he can ask agent to this, but LL still responsible.

If deposit not protectd then they cannot issue a section 21 notice for possesion, not valid. however section 8 possesion notice would be.

[Ed999]

My advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted.

 

 

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if you had a shorthold tenancy -

 

- Tenancy Deposit Scheme

 

- Tenancy Deposit Protection - First High Court Decision

 

- TDS eligibility, implication of breach and legal questions answered

 

 

The case of Tiensia v Vision Enterprises means that if the Landlord protects or repays the deposit even as late as the day of the court hearing, or at any time before judgement (if later), the court will not be able to award you the penalty of three times the amount of the deposit.

 

That was NOT overturned by the final Court decision in Potts v Densley, when the long overdue reserved judgement in that case was finally given.

 

Suing for the penalty, or merely threatening to do so, might cause the landlord to return the entire deposit to you, without any deductions, thus resolving a dispute over disrepair; although the landlord could, alternatively, put the deposit into a TDS scheme instead, and continue to argue for deductions for disrepair.

 

 

While the deposit is not protected, any section 21 notice given to the tenant is invalid, so will not end the tenancy. But a section 8 notice can validly be given.

 

 

The Act expressly states that the parties to the tenancy cannot agree not to protect the deposit. So it's futile for the landlord to raise this defence - but many still try to!

 

 

Also read the FAQ about what deductions the landlord can lawfully make from the deposit -

 

- Unfair deposit deductions

 

 

Where you paid a rent deposit to the landlord or his agent at the start of the tenancy, you probably won't get it back; so if the landlord is holding the equivalent of one month's rent your best tactic is not to pay the final month's rent, when the tenancy ends, i.e. to let him take it out of the deposit.

 

 

Your situation will depend on your ability to prove - or on your failure to prove - whether the person to whom you paid the deposit was lawfully appointed as the landlord's agent; and on whether you can provide evidence that you did make such a payment to that person, and the amount paid. At this stage, you will answer YES to any enquiry by the court as to whether a deposit was paid.

Edited May 16, 2011 by Ed999