Possible disguised deposit

[stephen81]

I moved into a property in August last year. We paid 6 weeks deposit, which appears to have been registered with TDS although we have never received the prescribed information.

 

In addition, the letting agency charged us (at the beginning of the tenancy) a £250 end of tenancy cleaning fee, returnable on end of tenancy. I didn't question this at the time although in hindsight I probably should. The agency is not managing the property, we signed the contract with the landlord directly. The agency didn't provide the inventory or check-in service. This was arranged by the landlord, and when we do leave, any check-out will also be directly with the landlord (although the inventory report was not worth the paper it was printed on as it didn't reflect the condition of the property at all. I raised this in writing with the landlord at the time, explaining all the issues, including the cleanliness of the house and have never signed a copy of the report, but that's another issue).

 

Now that we've reached the end of our 12 month fixed term, we are going to remain in the property on a periodic tenancy. In my opinion, the involvement of the letting agents has now ceased as our contract was with the landlord directly. With this in mind, I have requested the £250 to be returned. The letting agent's response is that they will refund this when I vacate the property if the property has been left in the same level of cleanliness. Given this could be several years, I am not happy with this.

 

In any case, I would expect that if extra cleaning is required after I vacate, this should be covered by the tenancy deposit so the extra cleaning fee is superfluous, but this got me wondering if the end-of-tenancy cleaning fee (taken at the start of the tenancy and to be refunded when I vacate, subject to the property being left in the same state of cleanliness) is in fact a further deposit, which should have been registered as such within 14 days.

 

I have checked the registration with TDS and that only includes the 6 weeks deposit, not the further £250 cleaning fee.

 

Can anyone more knowledgeable on the rules offer an opinion? Or can anyone point me towards any guidelines covering this? I have spent a considerable amount of time googling, but haven't found a similar situation so far.

 

Thanks in advance!

[stephen81]

Quick update...I note the regulations have been updated in various areas, including extending the deadline for registration from 14 to 30 days.

 

I've also had further discussions with the letting agent this afternoon.

 

Full email discussion below, but essentially:

• They have admitted they take the cleaning fee at the start of the tenancy and refund it at the end if the property has been left in the same level of cleanliness.
  
• They will do this on the landlord's advice.
  
• They have confirmed that they are holding the £250 as security in case we fail to fulfil our contractual obligation to leave the property as clean as we found it.
  
• They claim that as it's a cleaning fee and does not fall as part of the main deposit, it is not subject to deposit protection rules.
  
• The £250 cleaning fee is being held by the letting agency, not the landlord.
  

 

I can't see how this can be seen as anything other than a deposit under chapter 4 of the Housing Act 2004

 

“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—

(a)the performance of any obligations of the tenant, or

(b)the discharge of any liability of his,

arising under or in connection with the tenancy.

 

Do I have enough here to go forward with a Letter Before Action to the Letting Agency?

 

Full email trail below (anonymised)

 

From:

To: >

Sent: Tuesday, 9 August 2016, 16:38

Subject: RE:

 

 

From: [mailto:]

Sent: 09 August 2016 16:38

To:

Subject: Re:

 

Dear Alison

 

Please can you confirm if the separate £250 cleaning deposit is being held by or by the landlord?

 

Regards

 

Steve

 

________________________________________

From:

To:

Sent: Tuesday, 9 August 2016, 16:30

Subject: RE:

 

Dear Steven

 

I have explained the situation and answered the question already. It’s a cleaning fee which is separate to the deposit and does not need to be protected. The monies will be disbursed as per your landlords instructions at the end of the tenancy.

 

Regards

Alison

 

From:

Sent: 09 August 2016 16:24

To:

Subject: Re:

 

Alison

 

It's money that you are holding as security to cover the cost of cleaning if we fail to perform our obligation to leave the property as clean as it was when we arrived, as specified in our tenancy agreement. Under chapter 4 of the Housing Act 2004, the definition of tenancy deposit is as follows:

 

“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—

(a)the performance of any obligations of the tenant, or

(b)the discharge of any liability of his,

arising under or in connection with the tenancy.

 

Calling it by another name, does not stop it being a tenancy deposit as described in the act. Please can you confirm if it has been protected, and if so, provide the certificate and prescribed information?

 

Regards

 

Steve

 

 

 

 

 

 

 

 

 

________________________________________

From:

To:

Sent: Tuesday, 9 August 2016, 16:10

Subject: RE:

 

Steve as you know it’s a cleaning fee and does not fall as part of the main deposit and therefore is not subject to a certificate or alike

Regards

Alison

 

From:

Sent: 09 August 2016 16:09

To:

Subject: Re:

 

Hi Alison

 

Please can you therefore provide me with the prescribed information and deposit protection certificate for the protection of this deposit?

 

Kind regards

 

Steve

 

________________________________________

From:

To:

Sent: Tuesday, 9 August 2016, 16:02

Subject: RE:

 

Yes that’s correct but the tenancy agreement is still valid

Regards

Alison

 

 

From:

Sent: 09 August 2016 16:02

To:

Subject: Re:

 

Hi Alison

 

Please can you clarify, you are holding this £250 as security in case we fail to fulfil our contractual obligation to leave the property in as good a state of cleanliness as it was when we took on the property, and even though we are now past the initial 12 month tenancy term you will continue to hold this money until we vacate, even if that is potentially several years away?

 

Regards

 

Steve

 

________________________________________

From:

To:

Sent: Tuesday, 9 August 2016, 14:00

Subject: RE:

 

Hi Steve

 

Sorry but that’s the company’s policy. At the end of the tenancy the landlord will advise if a clean is necessary and if so we will arrange it and if not we will refund you.

 

Regards

Alison

 

 

From:

Sent: 09 August 2016 13:28

To:

Cc:

Subject: Re:

 

Good afternoon Alison

 

Many thanks for your reply. However, as didn't carry out the check-in and will not carry out the check-out, how will you be able to judge whether we have left the property at the same level of cleanliness? And as you are not managing the property, surely in the event that we were to leave the property less clean then it was when we got it (which would be quite difficult) then any remedial cleaning would be up to the landlord to arrange, and to agree a deduction from our deposit?

 

Kind regards

 

Steve

 

________________________________________

From:

To:

Cc:

Sent: Tuesday, 9 August 2016, 12:45

Subject: RE:

 

Hi Steve

 

We collect the cleaning fee at the start of the tenancy and refund it at the end if the property has been left in the same level of cleanliness. Its standard practice that we hold this fee for the length of the tenancy.

 

Regards

Alison

 

 

 

 

From:

Sent: 09 August 2016 10:20

To:

Subject: Re:

 

Hi Alison

 

On what basis? do not even manage the property. Our contract is directly with the landlord, the check-in was not done through , and neither will the check-out be when we leave. will not be arranging any cleaning on our behalf, so there is no reason for you to be holding any money for cleaning.

 

Kind regards

 

Steve

 

________________________________________

From:

To:

Sent: Tuesday, 9 August 2016, 10:10

Subject: RE:

 

Hi Steve

 

The cleaning fee will be held by until you vacate from the property.

 

Many thanks

Alison

 

 

From:

Sent: 08 August 2016 15:07

To:

Subject: Re:

 

Hi

 

I am writing to request a refund of the £250 end-of-tenancy cleaning fee you have been holding since we began our tenancy. Please can you advise what information you require to process the refund?

 

Kind regards

 

Steve

 

[mariner51]

I would like to hear LA justify their position in front of a Judge, you coud always pay an ind Inventory clerk to do detailed inspection report on last day of T, when you have removed your personal contents.

[Steve__M]

What does it say in your tenancy contract about the cleaning fee?

[stephen81]

It doesn't mention it.

 

It mentions a deposit of £2,396, although our invoice from the letting agent only included £2,146 deposit. I think it is just coincidence that the difference was £250, the same as the cleaning fee. I have found out from DPS (not TDS as I stated in my original post) that the protected amount is £2,146, which matches what we paid as the main deposit, not the extra £250 cleaning fee.

[Steve__M]

I was half expecting that it would be stated in the contract that it was a fixed fee for cleaning, and that their promise to return it if the cleaning wasn't needed was not in agreement with the contract. If that were the case then it would make it harder to argue that it was a deposit. The fact that it is not mentioned is good.

 

Are you saying that you paid the £250 cleaning fee and didn't get an invoice for it?

 

Regardless, it seems in your interest to conclude that it is not a coincidence and that the agent accepts it is part of the deposit. But that means the resolution of the situation doesn't mean the money is returned to you, it means that it is properly protected.

 

I would suggest that if the landlord is taking over it is important that the landlord is aware of the situation so that it is less likely to cause problems later when you or he gives notice.

 

Possibly you could sue but relative to the £250 it is expensive and time-consuming, and may cause you problems with your tenancy. You can always sue at a later date.

 

In the current situation, the landlord cannot give you a valid Section 21 notice to end the tenancy.

[stephen81]

The cleaning fee was on the same invoice as all the other fees and the main deposit.

 

The landlord isn't taking over as such. Our tenancy agreement was directly with him in the first place. The letting agent doesn't manage the property, doesn't collect the rent, didn't provide the tenancy agreement, didn't provide the check-in. All of that was done by the landlord himself. That's the main reason I wanted the money back in the first place, the letting agency basically have nothing to do with the tenancy now, so there is no reason for them to be holding £250 of my money indefinitely. Had they refunded it when I asked then I'd have probably left it at that. Their arrogance makes me want to sue them for all I can though.

 

I'm not overly concerned about causing problems with the tenancy, as the LA has no involvement any more and it's the LA I'm pursuing, not the landlord. The landlord also hasn't provided the prescribed info for the main deposit, so he can't issue a section 21 notice anyway, regardless of what happens with the £250 "cleaning fee".

[mariner51]

Sounds like LL employed LA for 'Tenant find Only' but on that basis, I would expect LA to either

1 pay deposit imm to LL

2 protect deposit & provide PI

 

 

Mention £250 payment to LL and let him recover it from LA/repa

[Steve__M]

Looks like you have a sound case. I'm a little bit behind on the rules and procedures of making such a claim. Last time I looked it wasn't a straightforward small claims claim.

 

Even though the agent says they have the money, the agent acts for the landlord. So normally you would approach the landlord with issues like this and it may be that you should sue both agent and landlord or just the landlord (Iamnotalawyer). If the agent went bust, for example, the landlord would still owe you the £250.

 

The agent sounds a bit incompetent. Is it a chain or a small agency? Currently I am in dispute with an agent who claims to be part of a chain but only has one shop. When she talks about "It's company policy" she means "It's my policy". Does the agent have any sort of independent dispute resolution scheme that you could go through? I believe that it is law that they should be part of such a scheme now.