Tenancy Deposit

[razza81]

I moved out of my property two years ago. Due to the current climate I cannot afford to sell this. Since then I have been renting this out.

First time round, when I was managing the property, the deposit was held by the estate agents. Second time round I advertised with a different estate agents and was informed that they should not have held this. I was informed by the new agents that I should register with the TDS but should not have to deposit the money to them unless there was a dispute.

I have now been informed by my tenants mother that I am breaching my contract as this is not held in the scheme and she is threatening to sue.

Since doing my research I can see that I could be made to pay £1300 plus court costs for this. I may have been nieve and trusted my current estate agents but they should be giving me sound advice.

Where do I stand? Any advice would be greatly appreciated.

[moralman]

I'm afraid it's down to you. Rubbish advice from an estate agent is no excuse, unfortunately. I sympathise. Why has this come up? Is your tenant leaving?

[razza81]

He has left. He found a new property and gave 3 days notice. I am happy to give the deposit back as he is aware that he will be paying the rent until I find a new tenant and he has left the property as when he arrived. I have been very fair with him and am shocked at this sudden news.

[jackthehat]

What is she threatening to sue you *for* ?

[sherrardk]

Isn't this just a cheap way for him to make money out of you? He's probably hoping that you won't chase him for the rent that he is due to pay while you look for new tenants.

[moralman]

So how does his mum know that you didn't use one of the deposit schemes? What type of tenancy is it? Have you looked on here: http://www.direct.gov...g/Tenancies/DG_189120

[boxtops]

If you are promising to give back the deposit, without any deductions, I don't see why the mother is kicking up a fuss. I believe you should have lodged it with the scheme as is now required, but what would she sue you for? The tenant is getting his money back, what can they sue for?

[Barmaid]

When did the tenancy in issue start? This is important. All new tenancies MUST be registered with the TDS and you MUST supply a copy of the certificate with the TDS to the tenant. Failure to do so means they can sue you for 3 x the amount of the deposit.

[boxtops]

Oh dear, barmaid, that could be bad news - but on what grounds? if he's getting his deposit back, what's the sueing for?

[moralman]

Yes, that is right, Barmaid. It's all in that link in my previous post, raz.
Boxy: I think the reason for this is to stop landlords from not bothering with the deposit scheme. They may think 'oh, I'm not bothering. I'll just give them the deposit back when they leave'. This 3x amount mullarkey is a deterrent to landlords who think like this.

[razza81]

The tenancy began in June 2010 and I supplied the details of the TDS whome I am registered with although they do not have the money, barmaid. I was informed not to deposit the cash.

I can't understand what grounds she think she can sue me but I don't know all of the legal ins and outs. From looking into this I am confident that we can get round this but am hoping for some legal input before I next contact her.

Thanks so far everyone.

[Barmaid]

If you supplied the details of the TDS but they never actually had the money, you cannot have provided a certificate of deposit. Under the Act (I'll have to look up chapter and verse and I'm a bit tired right now having been up since 5am) they are entitled to sue for 3x the deposit because you have not registered the £ with the TDS. Those are statutory grounds.

However, you've got a bargaining tool here. Tenant has left (was he still within his contractual period or was he "holding over"?). If the former, you can probably sue for the remainder of the period subject to you mitigating your loss and attempting to find a new tenant. If the latter, you can only sue for a month's rent. Best thing you can do is come to an agreement which is in full and final settlement of all claims between the parties on the grounds that you won't sue if he won't.

[razza81]

Moralman and barmaid, that wasn't what i wanted to hear but thought it would be the case, thank you for clarifying that.

He has three months left of tenancy, I think it is because of this that the deposit has come about. He knows he has to pay until the end of the contract and I think that is why the mother has got involved, I know mine would be the same!!

[moralman]

Good luck!

[BagPussAA]

When you get your next tenant, you do not have to deal with the TDS for the deposit. This is what is called an insurance despoit scheme which means that you can be sued for 3 times the deposit. If you place the deposit with the Desposit Protection Scheme (DPS) which is a government run scheme then all the tenant can claim back is the deposit amount i.e they can not sue you for more. I have recently been a tenant who's money was placed with the DPS and I had a dispute regarding the return of my money. The DPS are very efficient and professional and sorted the whole issue for me.

[Hazel104]

Even though the tenant has left the property they are still paying for it therefore the property is still theirs.

The contract can be ended in three ways.
1)The tenant reaches the end of the fixed term and has paid the full term.
2)You find a new tenant and release them from the contract. You are well within your rights to ask the tenant to pay a proportion of the re-letting fees.
3)You release the tenant from the contract and suffer a void period.

As you are still in contract I would not give the deposit back until the contract ends as the tenant can come back to the property if they want and you cannot stop them.
Pay the deposit into the TDS and supply the info to the tenant.
Only when the contact ends should you return the deposit. It highly unlikely they would win a case if you do this.

[myblackdog]

I believe that you have 14 days from notification of your 'error' to lodge said deposit under TDS or you could be fined 3 times the deposit amount - see directgov. Some experience as I was on the same end as your tenant and it cost the letting agent big style. You cannot issue section 21 notices for eviction should you not adhere to this. Hope this helps