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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

Original poster

to think you can get a deposit back on a flat if it's uninhabitable?

35 replies

threeleftfeet · 30/04/2012 23:09

My friend found a new flat this week. She paid the deposit and a month's rent in advance to the estate agent.

When she went to move in a leak has appeared in the ceiling and everything is wet! It looks like the leak is an old problem which has been badly fixed.

The landlord has an intermediary (my friend has no direct contact with the LL) who my friend rang. The intermediary said she could do nothing till speaking to the landlord. Her attitude was unhelpful to say the least.

A day and several obstructive phone calls later and nothing has been done or even promised. Together with some other things (e.g. they promised they'd fix the toilet and remove some furniture prior to moving in, which they didn't do, or even mention), she now feels there's no way she can move in there.

Do you know, who does she need to approach to get her deposit back, the landlord or the agent? The agent signed the tenancy agreement, not the LL.

Can she expect to get her deposit back on the grounds that the place is uninhabitable? She hasn't actually been able to move in!

Any advice would be much appreciated, TIA

OP posts:
QueenOfFIamingEverythin · 30/04/2012 23:12

Ok, if the agent signed the tenancy agreement they should be tslking to the tenant. I know a bit about this from having uninhabitable house in past and successfully suing both landlady and agent.

I am a bit pissed atm bt will come ad say more in the moening Smile

QueenOfFIamingEverythin · 30/04/2012 23:12

Bt for starters where is her depsoti? By law it needs to be in deposit scheme that offers arbitration.

CailinDana · 30/04/2012 23:12

Her first port of call would be the estate agent. They signed the lease so technically they are responsible for the agreement. They should have procedures for dealing with situations like this. She should have a look at tenancy agreement and check what it says about timely repairs and what happens in the event that the place is uninhabitable.

Original poster
threeleftfeet · 30/04/2012 23:17

The deposit didn't go to the deposit scheme. The agent said it's takes ages to get the deposit back and so it's a pain to use Hmm

The agent got round it by saying there was no deposit, instead 2 months paid in advance, one of which she'd get back by not paying the past month's rent.

The lease makes no mention of a deposit.

She spoke to the estate agents. They were sympathetic and friendly but offered no remedy AFAIK.

I reckon she should deal with them rather than the LL's representative as they signed the lease - shouldn't she?

OP posts:
Original poster
threeleftfeet · 30/04/2012 23:18

Cross post CailinDana!

Thanks for the replies everyone :)

OP posts:
SherlockGnomes · 30/04/2012 23:24

That thing re deposit is v v v illegal..but someone who knows more about that will be along shortly!

CailinDana · 30/04/2012 23:25

It sounds like the agents are trying to pull a fast one. They have taken a deposit, they just haven't called it that, in order to get around the deposit scheme. Does your friend have any record of the agreement to pay two months' rent and then get it back at the end? If she does, and she's up for a fight she should be able to challenge them on it, and if she's successful she could get triple the deposit back.

The best thing for your friend to do would be to write off the money for the time being (if she can afford it) find somewhere else to live, make sure she isn't fucked over again and work to get her money back from this bunch of chancers. If she can't afford it then it might be worth mentioning the deposit scheme and the fact that she might be contacting them as a way of pressurising the agents into sorting something out.

Original poster
threeleftfeet · 30/04/2012 23:25

QueenOfFIamingEverythin how long did it take you to sue them and get your money back?

OP posts:
CailinDana · 30/04/2012 23:28

BTW it doesn't take ages to get the deposit back. In fact under the scheme there is a very strict time limit to getting it back and if that's not adhered to then it's a big problem for the landlord. It sounds to me like they were hoping to shaft your friend for the money at the end of her tenancy. The only way to do that is to avoid the deposit scheme.

The landlord of every single person I know who has rented in the last few years (including me) has tried to shaft them on the deposit. The only thing that stopped them was the scheme.

oreocrumbs · 30/04/2012 23:29

Does she know the 'agent'? Are they a proper agency or just a person acting as a go between?

The deposit has to be protected in a scheme by law. Getting round the deposit by saying one is not paid is not how I have ever known it handled. Does your friend have a reciept? And what does the reciept say? Deposit or 2 months rent?

Did she see the property before signing the lease and was all well? When did she discover the damage?

Again as advised check the tenancy agreement WRT finding out what it says about repairs and providing alternative accomodation.

Original poster
threeleftfeet · 30/04/2012 23:34

There's a proper agent. And there's also a go-between who's working for the landlord.

The agency seem friendly and sympathetic so far, although not actually offering any help.

The go-between is very unhelpful indeed.

OP posts:
Original poster
threeleftfeet · 30/04/2012 23:35

I don't know if my friend has a receipt. She has a lease which mentions 2 months rent in advance, and no mention of deposit.

She saw the flat before she moved in but as it was a dry day there was no puddle. The crack in the ceiling is letting in rain water!

OP posts:
CailinDana · 30/04/2012 23:40

On the lease does it say two months rent in advance to be recouped at the end of the tenancy? If it does then that is a deposit and the agency are in deep shit. I would advise your friend to ring them first thing tomorrow and tell them she is contacting a solicitor to see about going to county court about the deposit. That'll get them off their arses pretty fast.

Original poster
threeleftfeet · 30/04/2012 23:41

CailinDana unfortunately she can't afford to write the money off. She needs it as a deposit for a flat, it's literally all her money.

You say "she's up for a fight she should be able to challenge them on it, and if she's successful she could get triple the deposit back. "

That's interesting, where does that come from?

She's definitely up for a fight btw!

OP posts:
Original poster
threeleftfeet · 30/04/2012 23:44

Thanks CailinDana, very useful info.

The lease says 2 months in advance, and that the last month of the tenancy won't be paid.

It did actually say that the last month shouldn't be used as a deposit. My friend noticed this before signing and the agents took it out, they said they meant to remove it but missed it. There's no mention of the actual word deposit in reference to that money.

OP posts:
Original poster
threeleftfeet · 30/04/2012 23:44

It stinks though, doesn't it!

OP posts:
CailinDana · 30/04/2012 23:46

here

As far as I can tell it's a drawn out process but if your friend can prove that the agent knowingly took a deposit and didn't protect it then the agent could be forced to pay the deposit amount into a protection scheme and give your friend either the amount or up to triple the amount of the deposit. To get that far it has to go through county court.

oreocrumbs · 30/04/2012 23:48

So the agency should be regulated by an official body. I would take it up with agency, she should have been given a deposit protection scheme, a gas certificate and an EPC by law along with her tenancy.

She needs to go to see the agent and not leave untill she has achieved an outcome. If they have not provided the above they have broken the law and she should report them to their official body.

When the deposit has not been paid into a scheme the LL has to pay 3x the amount back.

If she has agreed to not paying a deposit, then I suggest she speaks to the CAB about where she stands on trying to get the rent back.

Either way if she wants out she is going to have to stand her ground, get herself as well informed as she can and threaten to expose their shoddy behaviour.

The main problem apart from the deposit scheme that I can see is if she has taken posession of the house (accepted the keys). If she has then she has entered into the tenancy and now the damage needs to be reported for repair, and the next steps (including alternative accom) will be in her tenancy agreement. But usually once you have entered into the tenancy agreement you have to give at least one if not two months notice (and sometimes you have to see out the initial term, (there is a lot about this if you google landlord advice sites). Therefore she will need to pay rent untill this is resolved.

CailinDana · 30/04/2012 23:48

It doesn't matter if it doesn't say the word deposit, it is a deposit as she has given them money over and above the rent. They are holding money of hers that they are not legally entitled to.

HecateTrivia · 01/05/2012 07:00

I wonder if simply letting them know that she knows about the deposit, the scheme, the rules and her legal rights would be enough?

If she tells them that it IS a deposit and why, and that she intends to do such and such and will therefore be awarded triple the value of the deposit, etc etc - they might give her her money back?

QuickLookBusy · 01/05/2012 07:15

Make sure your friend takes photos to prove the state of the flat

Tell her to try the agent first. Tell them you know what they are doing re the deposit is illegal. That she wants to resolve this quickly, the flat is uninhabitable and she cannot move in. She wants all her money back by the end of the week. Also put this in writing.

I would also then tell the LLs representative the same thing so they are aware. If you don't get satisfaction today I would make an appointment with the CAB.

LIZS · 01/05/2012 08:18

There was a report on Watchdog a few weeks back where properties were promised and ll/agent even took deposits from multiple potential tenants but did nothing to make the property ready in time. If she has a contract then the agent has failed to meet his side - if they won't budge threaten Small Claims procedures and complain to any official bodies they claim to be members of.

Original poster
threeleftfeet · 01/05/2012 09:36

Thanks for the advice everyone.

The contract is signed by the agent, but it says "on behalf of" the landlord.

Does that mean the contract is actually with the landlord?

OP posts:
extremepie · 01/05/2012 10:01

I'm no expert on such matters but I would guess that as the landlord actually owns the property the contract is with him and he is responsible for any and all repairs that need doing.

I'm also assuming that the agents can't sign anything without the landlord's consent - does the contract make any mention of the repairs that need doing? If it does then he must be aware of the issues and the need to fix them!

If, for example, your landlord doesn't live in the country and is not available a lot of the time then he can appoint someone as he representative (which is sounds like he has done) but I'm not sure if this then means that person can organise repairs and such on the landlord's behalf?

Your friend could report him to environmental health maybe? If they agree that the flat is uninhabitable they can force him to make the repairs.

To be honest it sounds like your friend would be better off getting as far away from them as possible, it all sounds verrrry suspect Hmm

FutureNannyOgg · 01/05/2012 10:10

I think CAB might be the way to go.
The normal thing to do if you rental becomes uninhabitable, is to get a refund of the rent for the time when you are not able to use the property. In a normal situation I would say no to the deposit being refunded, but she should get her rent refunded for the time it wasn't fit for use. But here the "deposit" is actually an advance on rent, she is basically paying them a month in hand.
I'm not sure about deciding not to move in, she probably needs to give the notice prescribed in the contract, if they didn't sort it within the notice period, she should get all her money back. It sounds like they have done some really shady stuff with it though, so she needs advice from someone who can look over the paperwork.

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