Letting Agent legal advice needed

[legaladvice123]

I am writing for some advice for a family member. She moved into a private rental with the help of the council whilst fleeing domestic violence. She has since been left the property for a year but is still having issues.

She had numerous issues during her tenancy including the letting agent (who is the director and I believe only staff member) letting himself into her home without warning. She asked for this not to happen and he got quite aggressive. He then tried upping her rent multiple times, I think in a bid to force her out. He succeeded but the council told her she couldnt leave until they had a new property as she would be making herself intentionally homeless, so she overstayed her tenancy notice but was out as soon as she got somewhere to move into.

She has been gone a year and the hassling and bullying has started up again. He is saying she has to release the deposit from the DPS and has listed charges that are ridiculous, so a year ago she disputed it and thought it was done. He is now threatening if she doesnt release the funds, he will take her (and her guarantor) to court and they will get CCJs. This is a man that when she was in the property he also threatened that if she didnt go she would be arrested and go to prison, he has form for this unprofessional and bullying behaviour.

So the charges he is requesting is £445 in court fees, there was no court paperwork and she has never seen any reason for these fees. He wants £120 for a property clean and fridge freezer defrost, she had the home professionally cleaned and has video and photo proof it was immaculate. He wants £280 for painting over a mural she left on the wall. She was told she was allowed to decorate and when she left, the next tenant (in front of the agent) asked if it could be left as she liked it, and it was, and is still up on the wall to date yet he is charging for this as he said it was repainted as it damaged the wall. He is charging £180 for a gate that needed replacing. This gate was damaged while my relative was in the property by the letting agent. I dont believe it has been replaced.

She is getting photo evidence that the mural is still up and the gate is the same but I feel this behaviour is bordering on harassment. She has asked him to respond on the dps but he is refusing and saying she releases the money or he is taking her to court.

The thing is, the money isnt even hers, its the council who paid the deposit but at this point its the principle too, he is lying to obtain this money, harrassing and threatening her and I am concerned. She is mentally not super competent and has a clotting disorder where she is supposed to avoid stress due to a current blood clot on her brain.

I want to find out from a legal point of view, what we can do. I also have major concerns this man is in a position of power and is acting in this manor and wanted to find out if there is a governing body overseeing letting agents?

Before she moved into the property she was told he had also charged the previous tenant for a full redecorate due to childrens drawing on the wall but again this wasnt done and my relative ended up decorating when she moved in. She spent a fortune improving the property and garden and honestly she likely increased the value with the garden work alone.

Ah ok - probably worth double-checking with the council, in that case. I know the licensing rules vary by area, but not what all the different variants are.

There's nothing unlawful about it. A landlord can request their property back, but they cannot end a tenancy agreement

A tenancy agreement is almost always for a fixed term. The LL is restricted in their ability to terminate the agreement before the end of that fixed term. However, they absolutely can give notice to terminate it at the end of the fixed term, under section 21 of the Housing Act 1988.

It's not totally clear from the OP whether the sister was given notice under section 21, or under one of the other grounds allowed under Schedule 2 of the Housing Act. However, the OP clearly states "she overstayed her tenancy notice".

Still not unlawful though is it?

Just ignore the above. So much is legally incorrect I don't know where to start . . ..

The person had a tenancy and that tenancy remained in place as a statutory or contractual periodic tenancy until she left. She was not there 'unlawfully'.

Fgs why do people come out with this stuff?

Only the tenant or a court can end a tenancy. Yes the landlord can give notice but it's a notice not a termination.

OK, so we have established you are wrong about a LL being unable to give end a tenancy. Progress.

Let's move onto unlawful. What do you think it means?

The Housing Act 1988 is a statute (law). With me, so far? Under the Act and related legislation, both the LL and tenant have obligations. If they fail to comply with these obligations, they are breaking the law, hence 'unlawful'.

Try to apply a smidgeon of logic here. If you moved into my house without my permission, you would be breaking the law? Yes?

The same applies if you stay in my house when you no longer have permission or a contract to be there, provided that I have followed the law and properly given you notice.

Courts can evict tenants who refuse to leave. How could they do that, if the tenants were not breaking the law? Courts cannot arbitrarily make up rules. They can only enforce the law.

I really hope you are neither a tenant or a LL. If you are, I suggest you read https://www.which.co.uk/consumer-rights/advice/how-to-legally-evict-your-tenant-aBXmN6j0KcPC, for your own protection.

Contrary to what you say, it is not unlawful for a tenant to remain after a section 21 notice expires. It is only unlawful if the tenant remains after the courts have granted a possession order to the landlord. The tenancy automatically continues until a possession order is granted or the tenant leaves voluntarily. As they are still a tenant and the tenancy continues, they are occupying the property lawfully.

The granting of a possession order does not mean that the tenant is breaking the law. Court orders resolve disputes. They don't necessarily mean that someone is breaking the law.

@MissLucyEyelesbarrow you mentioned the Housing Act 1988. Clearly your reading didnt extend as far as section 5.

5 Security of tenure.[F1(1)An assured tenancy cannot be brought to an end by the landlord except by—

(a)obtaining—

(i)an order of the court for possession of the dwelling-house under section 7 or 21, and

(ii)the execution of the order,

(b)obtaining an order of the court under section 6A (demotion order), F2...

(c)in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power[F3, or

(d)in the case of an assured tenancy—

(i)which is a residential tenancy agreement within the meaning of Chapter 1 of Part 3 of the Immigration Act 2014, and

(ii)in relation to which the condition in section 33D(2) of that Act is met,
giving a notice in accordance with that section,]and, accordingly, the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy.
(1A)Where an order of the court for possession of the dwelling-house is obtained, the tenancy ends when the order is executed.]

(2)If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

(a)an order of the court [F4of the kind mentioned in subsection (1)(a) or (b) or any other order of the court], F5...

(b)a surrender or other action on the part of the tenant[F6, or

(c)the giving of a notice under section 33D of the Immigration Act 2014,]
then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.
(3)The periodic tenancy referred to in subsection (2) above is one—

(a)taking effect in possession immediately on the coming to an end of the fixed term tenancy;

(b)deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

(c)under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy;

(d)under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and

(e)under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.

Private rental
Informed by council to wait to be evicted
Deposit scheme - designed to be contested either side - she disputed
Landlord now threatening he will go to Small Claims for court fees (did he start the eviction process?), property clean, painting that didn't happen and an alleged replaced gate she did not damage.
Deposit was paid by council.

So twelve months ago
the deposit was not returned to the council?
Or was returned and set against her current tenancy?

I do not believe he will win on the Small Claims Court if the Deposit Protection Scheme returned the deposit already - that is literally what it is for, to stop landlords taking advantage.

Ignore his threats and start a log of all contact made.
All communications on alleged losses through DPS only.

Ok, so I have read through the updates now.

Am I misunderstanding?
The deposit has stayed in the scheme for nearly a year after the tenant left the property?

Even if the Letting Agent/LL were not asking for payments from it, who would it have gone back to? The council, no? What are they saying? (I assume this links to the threat of her receiving public funds, if the council have forgotten about it/have no involvement).

Ignore the agent. They know the rules. They know they need receipts.
Contact the council who put up the deposit in the first place (who has paid her current deposit?)

The DPS presumably has claim in dispute - awaiting court order on it and each side is waiting to see who folds first?
How is your relative even able to release the funds (to make this all go away) if it wasn't their money in the first place - wouldn't that mean they had to pay it back to the council themselves?

Neither of you have the benefit of the money because it is now with DPS, and DPS won’t release it without a court order.
Time limit for court action is six years.

The deposit scheme arbitration service is voluntary. The LL can refuse to use it (as can the tenant).

As the LL refuses arbitration, send the LL a "Letter Before Action"

When the LL refuses to return the money you claim in your LBA, start court proceedings yourself.

• https://www.gov.uk/make-money-claim-online

In your situation OP the agent appears to be deliberately avoiding arbitration but has allowed the stalemate to continue for this long.
But you haven't threatened them with court? Presumably, as the original deposit wasn't paid by you?
Has the threat your relative has received, OP, is it an official letter before action?

No, I'm not wrong.
I suggest you give up before being made to look even more inept

Ok so with regards to the leaving, its not exactly straightforward (as none of this has been).

So she had a 3 year contract, I found out last night that the council actually paid him an additional £5k to get her the property for 3 years (this was new information to me since last night).

After 2 years and 3 months this started, first with trying to increase the rent but when Shelter helped her point out this wasnt allowed, he then said the landlord wanted to sell and issued the section 21.

At this point she contacted the council, who told her to stay put and begun to find her a property that was suitable for her disability (she needed ground floor for mobility reasons).

This took time so took her OVER the notice period but still remained well in the initial 3 year tenancy. I believe she left 4 weeks after the section 21 stated she had to be left by. She left in May 2023 and her tenancy of 3 years would have run to the end of Sept 2023.

Hopefully this all makes sense.

No it is not an official letter, everything with him is just emails fired off, nothing is done in an official way. I believe he hoped the threat would be enough.

Yes the money is in DPS, no one is benefiting from it but he is trying to frame it as she is trying to steal the money, it is sat in the DPS and is refusing to engage with them.

We havent sent anything official either, yesterday morning we requested any documentation for these charges and its since been radio silence. Prior to this he was responding very quickly but shuts down as soon as we ask for any evidence.

You haven't answered where it goes if he folds and returns it without deductions.
She doesn't get to keep it. It would be repaid to the council.
If she folds though, she'd be liable to pay any damages taken off to the council.
What are they saying?

The Deposit Protection Scheme exists to protect tenants from unscrupulous landlords like this. If she follows the DPS procedures there is no way a CCJ against her would be successful. She should keep all correspondence in writing and keep reiterating that the DPS will judge whether his claims have any merit but she will be submitting her own evidence to them and he cannot bypass that process.

That is council money so will be returned to them. At the moment she is on the paperwork for it to be returned to her but is trying to get a name and email address of someone from the council so they can be representative and hopefully allow it to go straight back to them.

The DPS have said they can only start the dispute resolution process if both parties consent, at the moment he isnt responding and wont consent so it is stuck in a stalemate. It has been this way since June 2023.

You're stuck between a rock and a hard place.
The council should be pursuing this money.
If you don't fight it and he's allocated it, she'll owe the damages to the council.
If you flag it up to them, they might want it back now/if it doesn't go your way, you can bet your bottom dollar they'll come for the damages.
If you call his bluff and you take court action, your relative has the unwanted stress. If you do nothing, it hangs over you and causes unwanted stress.
They have five years to take action. You're in limbo.
I cannot find any info as to how long the DPS can keep it for.

@AprilPoisson I think we are going to have to leave it up to him whether he supplies the info to DPS or he decides to go to court, but either way we have all the necessary info. I think if he takes it to court, I will look at being able to go with her and speak on her behalf as she cant do it.

I hadnt considered that the council would request it back as im not sure they have even asked about it, I think his view is, it isnt her money so surely she should just release it but not only is it the principle, as you say, the council could then ask for that money from her.

Hi op, I have had a landlord who refused to engage with the process, we submitted a ‘statutory declaration’ to the deposit service, they emailed me a copy of the form when I rang and I think we had to have it witnessed by a solicitor (which was about £30 at the time) and sent that off, landlord then had 14 days to respond to the deposit service and if he didn’t you get the deposit back minus any deductions already agreed by both parties, we got all of ours back because the landlord didn’t engage with the service and no agreement for any deductions had been made before he stopped replying, if you think he’ll just ignore everything from the deposit service this is probably the quickest/least stressful route to get the money back

If she was still within a fixed three year term then the S21 was not valid in the first place (unless there was a break clause).

Either way, her tenancy would have remained until a possession order was granted.

@MissLucyEyelesbarrow
The problem is that, by the OP's own admission, her sister breached her notice period, so was unlawfully occupying the house. Don't get me wrong - the agent sounds like a twunt, but it isn't really 'bullying' for him to state that she might be arrested as a result - it is often a criminal offence
no she wasn't unlawfully occupying. It's not unlawful occupation to stay beyond a s21 notice date. The tenancy doesn't end until ended either by the tenant or the court.

No she wasn't. A s21 notice doesn't end a tenancy. It's perfectly lawful to remain after the end of the notice period.