Letting agent wants deposit

[bidster]

Hi,

 

I recently moved back into my flat having let it out to a tenant via an agent for the past four years. The estate agent called me to say that four years ago they paid the deposit into my account by mistake and want the money back. I realise I should have paid more attention to the statement when I first received it, however it was the first statement and so had a lot more detail and costings in it. The fact is that I don't have £650 to give the estate agent, moreover I paid them for a rent collection service. Their own terms and condictions stated that they would pay the money into a deposit protection scheme which they clearly didn't. Do I have any rights here seeing that this occured such a long time ago and they breached their own terms and conditions in the first place.

[maroondevo52]

Hello and Welcome, bidster.

 

I've moved this thread to the appropriate Forum.

 

Regards.

 

Scott.

[MrShed]

Have they already repaid the deposit to the tenant? To be honest, this will probably end up coming down more to "standard" law rather than anything specific to landlord/tenant. I am unsure of the rules regarding repayment of "overpaid" monies after so long.

[MrShed]

OK having done a brief bit of reading on it, I believe that you have a case to not repay if you genuinely believed the money to be your own, and it was spent on this basis at the time. It sounds as if this is the case here (Lloyds vs Brooks is the appropriate case law I believe). I would be inclined to send a polite but to the point letter stating to the agent that although you accept that mistakes occur, it is unreasonable and legally unenforceable to expect the monies to be repaid, as due to the severe time lapse, this money has been spent by yourself due to the genuine belief that it was your money. Then put that if they believe that they have a legal right to reclaim the money, invite them to proceed to court, but that you will defend any action. This should probably be enough to see them off. It is simply not reasonable for them to claim this mistaken payment after such a time. If you are feeling particularly charitable, you could offer to make small nominal monthly repayments, or offer maybe a third of the money in full and final settlement. I would probably advise against this though (at least prior to any court claim being issued) as it may undermine any subsequent defence. I doubt itll get that far though.

[Steve__M]

Interesting bit of law.

 

But in reality they may have only made the mistake *now* of repaying the deposit out of their own funds. There may have been no firm agreement as to who should hold the deposit.

 

If they are using mydeposits or TDS they can protect the deposit without paying it into a scheme.

 

If you really thought the money was yours to keep then you will presumably have declared it on your tax return. Perhaps showing the judge your tax return would be good evidence.

[MrShed]

It does state (or at least heavily imply) in the original post that the money would be held by the scheme.

[Aequitas]

Surely the point here is that the deposit is the tenant's money and not either landlord's or agent's.

[mariner51]

Date Tenancy commenced and date T paid the deposit? 2011-4=2007. before or after DPS was requirement?

IMO Deposit is nominally Ts money during T, LL & T cannot access deposit during T if held in app scheme. At end of T it can be accessed by LL to offset Ts repairs etc with T entitled to remainder.

Edited August 3, 2011 by mariner51

[Aequitas]

There does not seem to be here any question of the landlord being entitled to retain the deposit. Accordingly it is the tenant's money. A tenant can always recover a deposit from a landlord because his contract is with the landlord.

[MrShed]

Guys I think you are off on what appears to be a needless tangent. This is a case of a mistaken payment via bank transfer to the OP, nothing more. We can remove the tenant aspect from it in its entirety at this stage IMHO. If the OP comes back and says that the tenant has NOT yet been repaid the deposit, that may be a different matter.

[Aequitas]

But why would the agent be asking for the deposit if not to give it to the tenant?

[MrShed]

Because the agent has repaid the deposit and is hence out of pocket themselves? Perhaps?

[Steve__M]

OP has hinted that he didn't read his initial statement carefully. If the statement says the money was rent or if it said it was deposit may be relevant.