Estate agent covering up their severe mishandling of the protection of the deposits?

[PunnyHiker]

I believe the estate agent has made a significant internal error that has resulted in a failure to protect our deposit for at least 2 tenancies but now I am unsure based upon their latest response to our letter before action. They are large estate agent so I want to be sure on a few things.

Context:
There are 4 tenants and 3 separate ASTs involved. Tenants have moved in when the end of that initial tenancy ended and deposits had been transferred between tenants as instructed by the estate agent. The tenancy protection scheme is the Tenancy Deposit Scheme (TDS). The estate agents have provided the prescribed information in each contract. The separate tenancies and tenants are below:

• March 2021-September 2021 - Tenant A & B - Deposit protected correctly
• March 2021-September 2021 - Tenant A & B - Nothing found for the deposit on TDS when searching and after contacting them
• September 2022-September 2023 - Tenant A & C - Nothing found on TDS when searching and after contacting them
• September 2023 - September 2024 - Tenant C & D - Deposit registered date is February 2024, 5 months after tenancy start date.

Deposit:

• The estate agent emailed us in February 2024 chasing for missing payments from our account but we’ve paid everything on time. After some back and forth they dropped the charge as it turned out they had on record a deposit of £1032.69 but our signed AST for this year and the previous one had the deposit as £1125. They then chased us to quickly sign the inventory report which we just ignored as it was from March 2021.
• I think at this point they may have realised the bigger issue and tried to sort the deposit process out.
• During this exchange I realised that our deposit may not have been protected so I requested 4 separate times for the deposit certificate number to be sent over so we and finally they sent one over on the 14th February 2024

This is the strange part is the certificate they sent, the certificate states the below fields and dates as I’ve only lived here since September 2022 and there has been a new AST signed in September 2023 and the registered date seems to imply it was only registered this year despite being received in 2021:

• ‘Beginning on 29th March 2021’
• ‘Ending on or after 28th September 2024’
• ‘Received by Member XXXXX 29th March 2021’
• ‘Registered with the Tenancy Deposit Scheme: 14th February 2024’

Estate agent response and claims:

• The deposit for this tenancy has been protected with the TDS since 25th March 2021, four days before the tenancy began. It will remain protected under this scheme until the tenancy concludes.
• The Deposit Protection certificate you referenced in your previous email states “Registered with the Tenancy Deposit Scheme: 14th February 2024,” which might have caused some confusion, as it suggests the deposit wasn’t registered until February 2024. However, this date merely reflects when the certificate was updated. The same certificate also states: “Received by Member G01488/ 3705::17365 29th March 2021,” confirming that the amount of £1,032.69 was sent to the TDS and has remained protected since that date.

As there were separate tenancies and change of sharer processes I’m not sure if all of this is truthful or they’ve made a significant error and are trying to cover it up and mislead, any advice or comments are appreciated!

Try a subject access request?

The issue is that deposit schemes were brought in for tenant protection. Tenants should not be at the whim of landlords wishing to chip away or seize the deposit on spurious grounds. We see that even deposits that are properly protected are not immune to this (see 90% of MN threads involving a landlord-tenant dispute for a landlord wishing to make unreasonable deposit reductions). Even if the landlord doesn't try to pull anything when OP moves out and returns the deposit in full without dispute in a short period of time, it is still a problem if OP's deposit wasn't properly protected. It would mean that the landlord (EA for landlord) was in breach of legal obligations to the tenant which were made for tenant protection; the tenant was left in an unprotected state because the landlord failed to meet legal obligations. That problem doesn't go away because it's a landlord who is 'just' lazy and careless rather than deliberately dishonest and trying to benefit at OP's expense.

And, now that I have read the link to the legislation, it is clear that it introduced a statutory financial penalty for breach of the requirements in order to signal how seriously the obligation to protect the deposit is taken by the government. From what I can see, the max penalty is 3x the deposit but there is mitigation you can present as landlord to convince the court to order a lower fine.

I still don't understand. That just tells you what the law is, but does not explain your issue.

Are you just worried that they haven't given you a reference number?

I get all that, however the law protects the tenant regardless. I know what the landlord / agent acting on behalf of the landlord should do, however it is a landlord problem and not a tenant problem.

In any scenario, the tenant is protected. If the deposit is registered, then it is protected and there is a process to go through if the landlord wishes to withhold an amount.

If the deposit has not been protected for any reason, then the landlord is liable and is unable to withhold any amount under any circumstances, and will be fined to boot.

No loss to the tenant in either case (apart from a justifiable retention in the case of damage in the scenario where the deposit was registered to a scheme).

I'm an accidental landlord. I have never taken a penny off a deposit from any tenant, fix stuff instantly and charge slightly less than what I could. But many landlords don't do these things and don't comply with the law. If the OP's landlord hasn't followed the Housing Act and the OP is legally entitled to compensation, why shouldn't they get it?

Also, I think at the end of the day landlords have to remember that someone is in effect paying the mortgage and then some, so it's important not to be a knob about the small stuff. I never had a terrible landlord and as a landlord now, I try to pay it forward...

There doesn't need to be a £££ loss for a court to order that a landlord pays up to 3 x the deposit for failure to protect it.