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tenant has not payed rent but still gets deposit back - this can't be right?!

(30 Posts)
reastie Fri 05-Apr-13 12:13:30

DHs tenant on his house has had legal proceedings against her and has moved out after not paying any rent since moving in (aside from her deposit).

DHs estate agents have told him he can't have the deposit back unless it's for specific work to the house where the tenant has left it in a worse condition than she should have based on the inventories they have done (eg cleaning where she left it dirty or replacing a blind where she left it broken etc) but the remainder of the deposit will then go back to the tenant despite the fact she hasn't paid any rent. Surely this isn't right???? angry It seems so unfair that she gets most of her deposit back despite us being so out of pocket and having no rent coming in for 5 months (and it has transpired she didn't pay any bills whilst there and has a whole host of debt companies after her and did the same at her last place (as the solicitor letters that are arriving at the house are telling us) so we have alot of extra paperwork proving she has moved out and we aren't liable for her debts.

LIZS Fri 05-Apr-13 14:06:28

Agent is correct. Deposit is ringfenced in a scheme and cannot be used in lieu of rent. You can sue her for the payments.

msrisotto Fri 05-Apr-13 14:08:07

She did the same at her last place? Didn't you get references?

reastie Fri 05-Apr-13 14:10:54

Yes we got references - the agent did all that and apparently it all came back as fine, we questioned agent when we found out she had been chucked out of her last place and was just told court may not have come up on her credit check yet as it could have been too recent. I seriously wonder whether she just gave any old person as her old landlord though. Her employer it looks like was her mother who lives in America who has her own company. She probably goes from place to place doing the same thing hmm

That's annoying we can't get the deposit back - just seems so unfair and that in this situ it should automatically come back to us <stamps foot in annoyance>

msrisotto Fri 05-Apr-13 14:17:12

Are you in contact with the tenant? When my tenants pissed off and refused any kind of contact, I was able to retreive the entire deposit. However, I think they left the country and they left me with no forwarding address so the DPS' ability to contact them was also limited which probably helped.

specialsubject Fri 05-Apr-13 14:33:28

was the deposit in a protected scheme? (It should have been). Raise a dispute, quick.

if your agent is a member of any association, raise a complaint. If not, give them hell.

reastie Fri 05-Apr-13 15:35:05

So I can get the deposit back then <hopeful and a bit confused>. I assume it's all in a protected scheme deposit. It was all done via the estate agents. I've just checked and they say they are part of the ombudsman scheme for estate agencies. I have no idea if they have a forwarding address for new tenant. Tbh the agents have been useless with everything which is why I am querying this as it doesn't seem right. We are now with different agents.

reastie Fri 05-Apr-13 15:35:32

special how do I raise a dispute and am I actually in a position to get the money back?

pettyprudence Fri 05-Apr-13 15:36:29

Actually all the deposit schemes allow you to deduct rent from the deposit but obviously you have to declare it and go through the proper channels of the deposit scheme you are using - you can't just take it and not process it as a deduction IFYSWIM?

I have done this several times with all 3 schemes for landlords.

If its with the DPS and you have no contact with the tenant, AND DPS cannot contact the tenant to confirm the deduction you are going to need a solicitor to witness DPS statement paperwork so that they can release the money to you. PITA but worth it.

Was the tenant evicted by the court for non payment (through the section 8 route)? If so, the court judgement would act as evidence for a deduction to the deposit (you will only really need this if dealing with DPS rather than TDS or mydeposits)

reastie Fri 05-Apr-13 15:39:30

petty what is DPS? blush . Yes we had to get court proceedings to get her out. Why are the estate agents saying she will get the money back then I wonder hmm

msrisotto Fri 05-Apr-13 15:44:28

DPS = Deposit Protection Service.
TDS = Tenancy Deposit Scheme

These are the main deposit protection schemes. The deposit should be in one or other, ask your agents.

pettyprudence Fri 05-Apr-13 15:46:03

DPS is the govt custodial bond scheme so they hold the deposit and you have to apply to them to get the money released. They are the most PITA.

The other 2 schemes allow the agent/landlord to hold the money and they "insure" the deposit (ie insure against the landlord running off with it).

However the deposit is protected it is the landlord and not the agent who is responsible for it and can decide which deductions to apply for. The agent needs to remember that they work for YOU! Can you find out how the agent has protected the deposit?

PM me if you want me to go through in more detail how to claim the deposit back

reastie Fri 05-Apr-13 15:55:09

Thanks petty the agent has told DH he can't claim for unpaid rent, just for things that are in unsuitable condition in the house. It may even be that tenant now has deposit back already angry . I'll ask DH if he can ask estate agents about this and may well pm you. We are on holiday next week though so it may be some time. If it turns out we should have had the deposit back and through their lousy advice we didn't I will be going to the ombudsman to complain <sigh>

reastie Fri 05-Apr-13 18:16:57

It's TDS apparently, have tried googling to see what help that has on things but can't work it out

pettyprudence Fri 05-Apr-13 18:22:27

ok tds is the scheme aimed at agents so a little less control for you. if it is tds then the agent will be holding the money.
when did the tenancy end? email agent now (if you haven't done so already!) and tell them not to release a penny without your written consent. if they have released the money you may be able to take action against the agent.

reastie Fri 05-Apr-13 18:29:31

This all happened probably a month ago (the tenant moved out - not sure whether the money has been released yet). Have just been googling and can't find anything about non payment of rent and claiming the money back via the deposit. We had insurance which paid for some of the rent loss but still lost some money through the non payment of the tenant. DH rang agent and mentioned this and was told they would 'look into it'. The only reason we would have given consent for them to release funds back to tenant is because we were told by them we couldn't claim the rest of the deposit back for failure of rent payment.

colleysmill Fri 05-Apr-13 18:38:39

We had a tenant who had to leave the country due to personal circumstances and ended his tenancy early. Our agents (who dealt with everything) released the deposit for us - the tenant had agreed to this (not sure if that makes a difference?)

specialsubject Fri 05-Apr-13 19:29:46

The horse has bolted, so you now need to beat up the agent. You've doubtless paid a lot of money for this 'service'.

write some letters, deliver recorded signed for, detailing what they did wrong and what you expect them to do about it.

with letting agents you do need to keep the dog and learn to bark - there is no compulsory regulation and you need to be aware of what is going on at all times.

pettyprudence Fri 05-Apr-13 19:32:52

If they have incorrectly advised you, then the agent could still be "negligent" and you could still possibly claim against them. Hard to prove though.
You need to find out the current status of the deposit, a copy of the tenancy agreement (the agent is likely to have added additional clauses to a standard AST) and copy of the inventory and check out report. Then go from there re: deductions.

reastie Fri 05-Apr-13 19:38:07

Thanks. I've checked DHs emails and we don't have any written proof that this is what they advised us re: claiming back unpaid rent, but they did most definitely say this on the telephone several times as we queried it with them as it didn't seem right. They did advise us in email though that the court costs could not be counter claimed by deposit though - I'm not sure if this is correct or not??

We've lost the money now and likely won't get into taking claims against them (but may try some strongly worded letters if that might make a difference). DH rung them up today and apparently the manager who advised him this has now left the shop. They are a member of the ombudsman so I guess I'll be going there to complain. Tbh I had no idea they could get such basic thing wrong. We put our trust in them that they knew what they were talking about, being the experts in the situation and everything confused

pettyprudence Fri 05-Apr-13 19:47:55

Maybe the agent got confused because I'm fairly sure you can't claim the court costs through the deposit (Although if a judgement was made against the tenant it might be do-able?).

A judge told me a few weeks ago that the only rent I was likely to get back from a tenant was her deposit...... I'm inclined to agree with him, but he at least assumed that we could do this.

Viviennemary Fri 05-Apr-13 19:56:12

That does seem pretty amazing if the tenant gets the deposit back after defaulting on the rent. The other side of being a landlord.

reastie Fri 05-Apr-13 21:14:12

OK, I have all the details now. DH had insurance to cover loss of rent but it didn't cover the initial half month she didn't pay (which effectively was the insurance excess) so DH is only out of pocket by half a months rent (not as bad as I had thought) due to his insurance then kicking in. We have an email from estate agents saying we can't claim back the insurance excess (ie the half months rent he is short of) - is this the case? I can see that it may be treated differently as logistically it's an insurance excess as the insurance doesn't kick in until after this time but also he is still short of half a months rent because of her non payment so should get that back from the deposit????

I would have hoped the remainder of the deposit goes back to the insurance company but I doubt it.

reastie Fri 05-Apr-13 21:14:47

*can't claim it back via the deposit I should have said

pettyprudence Fri 05-Apr-13 21:57:13

ok you can't claim the insurance excess (unless it was stated in the AST) but you should claim any unpaid rent. so if there was half a month owing (and not due to insurance excess) then you should claim this.
did your agent let a tenant move in without paying the first month in cleared funds? did they do the referencing themselves or send it to an agency? references are easy enough to fudge, even through an agency. Anyway, im assuming you won't be using them again shock!
its very hard to catch out "professional" tenants like yours so can't blame the agent for that but it does sound like they are not very clued up on the deposit scheme or tenancy agreements (as in they haven't got enough clauses to protect the landlord)

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