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Andy1011

Failed To Secure Deposit

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I recently moved out of my apartment after 3 years (13/07/2012 - 04/08/2015) and found out that the agency failed to pay my deposit into a protection scheme.

Although they have assured me they will repay me, the 10 days they would normally have to repay the deposit has passed (10 working days will be on Wednesday the 19/08/2015).

As my deposit wasn't secured I don't know what my recourse is to recover it.

From what I understand it is illegal not to secure the deposit within 30 days of the start of the tenancy. What are my options ?

Any help would be very much appreciated,

regards

Andy

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The good news is that they must return it to you in full. I assume you have asked them for it? Is the agent the landlord as it is the landlords responsibility not the agent.

I would contact the agent and the landlord, remind them verbally of their obligations and tell them you don't want to have to go to court where you could be awarded 3 times the deposit. If no response, put it in writing - good example letters on the shelter website.

Then it's small claims court. Don't be scared and I hope very much this delay doesn't put you at any hardship.

(and this is why we don't like landlords and letting agents)

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I think I would phone the agent and landlord (if you are in direct contact) today and tell them that you need the deposit back by close of business today, otherwise you will, immediately and without hesitation apply to the court for redress on the grounds that a TDP scheme has not been used when it should have been.

In this situation there is no need for you to be nice or in any way accommodating / forgiving

If you haven't got the money in your account by 0900 tomorrow morning, then you should start the court process immediately.

Do not delay or hesitate or accept anything other than the full refund of your deposit.

https://www.gov.uk/tenancy-deposit-protection/if-your-landlord-doesnt-protect-your-deposit

If it is the agent's fault rather than the landlords, that is the landlord's problem, not yours.

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As others have said, you're in a strong position. I'd still stay polite but be firm and take no nonsense.

I'd also read and enjoy a story here of what happens when a landlord thinks himself above this law. Bear in mind, it's a long-drawn-out story but one whose ultimate outcome was as inevitable as fate.

http://www.housepricecrash.co.uk/forum/index.php?/topic/146492-submitted-n208-claim-for-deposit-non-protection/

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From what I remember, if they did not put the deposit in the scheme, you ate entitled to compensation on top of 100% of your deposit. These punitive rules were put in place to encourage compliance.

http://m.england.shelter.org.uk/get_advice/tenancy_deposits/tenancy_deposit_protection_schemes/penalties_if_a_landlord_breaks_tenancy_deposit_rules

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From what I remember, if they did not put the deposit in the scheme, you ate entitled to compensation on top of 100% of your deposit. These punitive rules were put in place to encourage compliance.

http://m.england.shelter.org.uk/get_advice/tenancy_deposits/tenancy_deposit_protection_schemes/penalties_if_a_landlord_breaks_tenancy_deposit_rules

I would love to be corrected but I cannot recall a case of a landlord being forced to pay compensation if they return the deposit before a small claims court hearing.

Therefore, I would put the 3x deposit champagne on ice for a while. Just follow the procedure laid out by Shelter and see what happens and make sure you are trying to claim the deposit back off the correct person.

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From what I remember, if they did not put the deposit in the scheme, you ate entitled to compensation on top of 100% of your deposit. These punitive rules were put in place to encourage compliance.

http://m.england.shelter.org.uk/get_advice/tenancy_deposits/tenancy_deposit_protection_schemes/penalties_if_a_landlord_breaks_tenancy_deposit_rules

... but clearly, as this is still happening years later, they've failed to ensure compliance :(

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I had to have this argument with a landlord. He originally threatened me with small claims due to damage exceeding the deposit (claimed £2.5k for things like the toilet that broke at the end of the tenancy). Interestingly it is no longer ok to simply repay a deposit after the event; I guess that was changed in 2011. Also, you can claim 3x deposit penalty for every individual tenancy over the 3 years (it may just be the initial fixed term, and a second periodic tenancy).

Put together, it can sound pretty scary to a landlord. Mine offered me all but £300 of my deposit back. I said "no" and he eventually gave back the full £1,575 having wasted money on a solicitor. Which was ok because my dog had done a little bit of damage and, if you go through court, they can counter-claim for that. I used the following (names/specifics removed)...

Having sought legal advice, it is my intention to take civil action against you for two offences under Section 214 of the Housing Act 2004, with respect to the amendments made under Section 184 of the Localism Act 2011.
More specifically, the offences in question were:
1. Failure to protect a £1,575 deposit within the prescribed 30 day period for the Assured Shorthold Tenancy on XXX that ran for a 12 month period from 10th August 2013
2. Failure to provide the prescribed information for the Periodic Tenancy that ran from the 10th August 2014 until ending by mutual consent on the 19th September 2014
It should be noted that under a 2013 Court of Appeal case between Superstrike and Rodrigues, it has been determined that a statutory periodic tenancy constitutes a new tenancy. Even in the case of a deposit subject to on-going protection, it has been found that the prescribed information has to be served again (Gardner vs McCusker, Birmingham County Court) and the Landlord was fined two times the deposit amount. In our case, as the initial deposit was not protected until the 12th August 2014, after the Periodic Tenancy began, and the prescribed information has still not been served at the time of writing, there is a very strong case for a higher penalty in relation to the second offence.
Although ignorance is not a defence, the correspondence between us suggests this was a wilful failure to comply with tenancy legislation.
If found guilty of the above offences, the “court must also order the landlord to pay to the applicant not less than the amount of the deposit and not more than three times the amount of the deposit”. The maximum penalty that could be awarded against you is £9,450 and, if forced to go to court, I will be pursuing a claim of at least £6,300 + costs. The exact amount will be subject to further legal advice.
In order to save us both the hassle of going through the court process, I am prepared to renounce all my claims against you if you:
1. Renounce all claim for any moneys owed with respect to my tenure at XXX
2. Return my £1,575 deposit in full
3. Pay a further £1,575 in settlement
Please pay £3,150 into my account in the next 14 days or I will proceed to full legal action on the basis of this letter. Account details follow:
XXX
This letter before claim is in accordance with Civil Procedure Rules and if you do not wish to settle as outlined above then, as defendant, you should “give a full written response within a reasonable period, preceded, if appropriate, by a written acknowledgment of the letter before claim”, where a reasonable period would be considered to be 14 days (Pre-Action Conduct, Section 7.2, Paragraphs 1 and 2).

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Actually, this detail amused me and I don't know why I left it out:

As well as the basic facts of the case, there is written evidence that you proposed protecting the deposit with MyDeposits, and that I questioned the economic sense of paying the insurance premium on the basis of a £24 fee. You wrote back on the 28th August 2013 stating:
“As a landlord I have two governments (sic) schemes, I always and will continue to use the insurance scheme. It is approved I have used it since its introduction, there is charge of £80 which I opt to pay for. As soon as you sign the contract I will register the deposit and send you the scheme number.”

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One thing the SNP have done well up here is actually try to put tenants rights ahead in some cases. Makes a big difference.

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