UK Landlord Forum / Life

Hi all,

Looking for a bit of advice, I've been using a letting agents to manage my property for the last year and half. After getting stung with a problem tenant previously, who we had to go to court to evict and having to re decorate the house from top to bottom, we decided to take the hassle away and instruct said letting agents to manage the property and were happy to pay the management fee so it would be stress free as we live over 100 miles away also.

All was going well (apart from the odd payment being sent to us over a week late) up until December, I must say there are no issues with the tenants at all they have always paid on time and kept the house in good condition.

In December the letting agents went from 2 staff (owner and a family member) to just the owner managing everything, this is when the problems started, Decembers payment did not come through, several excuses made like moving business location, banking locked out, been very unwell etc. etc.

I raised a complaint and advised I will be terminating the contract with them as they have breached contract, I also wrote to the tenants to advise them to pay me directly so no further payment were missed.

When the agent did get back to me by email she was full of apologies, and excuses and did eventually did move the missing rental income to me.

She advised I will need a new letting agreement with the tenants myself if I wish to discontinue them as agents and she will transfer the deposit to me directly so I can put it in a custodial scheme in my name, this was 3 weeks ago now.

Now for the last few weeks she is unobtainable, no reply to emails, no reply to calls or text messages - I have even sent her a message on her facebook business page to which she did reply promising a call which never happened.

(sorry this is long!)

So my questions are - 
1. will the letting agreement that was signed between letting agent and tenant still stand now the agent is 'dumped'.
2. we were looking to sell the property and give the tenants notice to leave soon regardless of these issues (currently on a periodic contract) can I still serve them notice, concerned the current tenancy agreement is no longer valid and I will run into problems.
3. If I do have to write out another tenancy agreement can it be as periodic straight away or is there a minimum term (as I mentioned we are looking to sell)
4. if I wrote out a tenancy agreement for lets say 6 months - could I also put the house on the market a few months in, but honour the remaining 4 months as I feel it may take some time to sell looking at the current market in the area.
4. how can I get the deposit back from the letting agent if they are unobtainable - it was apparently put in a custodial scheme with the DPS but they will not speak to me about it as not in my name - what if it was never put in?

Many thanks for any advice you can give me to move this forward! 

Quote from: husarah on February 28, 2019, 03:48:54 PM
1. will the letting agreement that was signed between letting agent and tenant still stand now the agent is 'dumped'.
2. we were looking to sell the property and give the tenants notice to leave soon regardless of these issues (currently on a periodic contract) can I still serve them notice, concerned the current tenancy agreement is no longer valid and I will run into problems.
3. If I do have to write out another tenancy agreement can it be as periodic straight away or is there a minimum term (as I mentioned we are looking to sell)
4. if I wrote out a tenancy agreement for lets say 6 months - could I also put the house on the market a few months in, but honour the remaining 4 months as I feel it may take some time to sell looking at the current market in the area.
4. how can I get the deposit back from the letting agent if they are unobtainable - it was apparently put in a custodial scheme with the DPS but they will not speak to me about it as not in my name - what if it was never put in?

1. Yes. Any terms of agreement (or disagreement) between you and your agent does not affect the tenant's tenancy.
2. Yes, you can serve s21 (or s8) notice. The tenancy agreement is still valid notwithstanding any problem you may have with your agent.
3. N/A
4. Just leave things as they are.
4 (again). You have enough information to check online whether it have been protected with one of the scheme, which is something you should had done anyway already. If protected, then tenant can always make a claim for it from the scheme when tenancy ends. Are you sure the agent gave the prescribed information correctly to your tenant? If not, especially if they go AWOL, you'll be the one paying the deposit protection penalty.

Thanks for your swift reply - that's good news that the tenancy agreement still stands  thankyou.
I've tried putting the details in the DPS website however it keeps coming back not recognised, maybe I'm entering something wrong? - I have the DPS reference number that was provided to me, and I have tried calling them and explained my situation however due to data protection they would not confirm if the deposit was with them or not. They also advised the only way of transferring it without the agent actually doing it is to provide them with proof we own the property for example deeds - I think I will dig them out this weekend and go down that route at least I will then know for sure if they have indeed put it in the scheme, fingers crossed - I now know to check everything myself rather than taking the reference number and trusting all in order 

Jumping the gun, if I find this has not been done - this is my error for not checking and I will pay out of my money so the tenant doesn't loose out and put the same amount into a scheme - could this have repercussions for me given the letting agents were under contract to do this for me and advised they had (all proof kept)?

What would you suggest is the best course of action to get the agent to at least reply to me and give me all the information they hold, they are registered with the PRS, so I've looked into registering a complaint against them however my 'official complaint' email was only sent 5 weeks ago where I also requested all information held re tenancy and it states I need to allow 8 weeks.

Many thanks Sarah

Quote from: husarah on February 28, 2019, 05:45:21 PM
I've tried putting the details in the DPS website however it keeps coming back not recognised, maybe I'm entering something wrong? - I have the DPS reference number that was provided to me,

You can search by reference number, or tenancy details. Try both ways.

QuoteJumping the gun, if I find this has not been done - this is my error for not checking and I will pay out of my money so the tenant doesn't loose out and put the same amount into a scheme - could this have repercussions for me given the letting agents were under contract to do this for me and advised they had (all proof kept)?

Well, if the deposit either wasn't protected or prescribed information given within the deadline, then you as landlord is liable for a deposit protection penalty of between 1x and 3x the amount of the deposit per tenancy.... If the agent have disappeared, you can't even go after them in turn for compensation. Protecting late will not enable you to serve a s21 notice. You'd have to return it first.

Thanks for your help,

The DTS website is requiring all details, that's why I think its not recognising something. I'm just hoping it is all fine and I'm panicking over nothing. Before communication was lost between me and the agent, she was saying she will transfer the deposit to me in my account so I can put in a scheme of my own - would this class as a late protection too do you know?

Quote from: husarah on February 28, 2019, 06:58:12 PM
The DTS website is requiring all details, that's why I think its not recognising something.

The ID is optional. You must know the tenant surname, tenancy start date, property postcode, and the deposit amount..... 

Quote from: husarah on February 28, 2019, 06:58:12 PMThe DTS website is requiring all details, that's why I think its not recognising something.

KTC is correct... it's designed for Tenants to check, it doesn't require anything you shouldn't know... the only tricky one might be Tenancy Start as, if you didn't put it in there, it might have been lodged with a different date... I think they (the DPS) should work on that (I just checked one of mine and you do have to get the month and year correct - it's not a fuzzy search in any way, it seems).

https://account.depositprotection.com/is-my-deposit-protected

If it was protected correctly by your Agent, and then it's transferred to your DPS account (which you should set up) then even though there might be a very small period I don't think anyone could ever consider it a time when the Deposit is unprotected, or consider it late.

By far your biggest concern is finding out if it was protected... the Tenants should (obviously) have been given documentation, which would include the unique Deposit ID (that alerts them to the potential problem - edit: you say you have this anyway)... fingers-crossed. You need to jump on this, don't be an ostrich.

https://england.shelter.org.uk/housing_advice/tenancy_deposits/check_if_your_tenancy_deposit_is_protected

Thanks for the responses, I have had a response back from the agent, basically admitting she is in financial troubles, with lots of apologies. She still assures me the deposit was protected correctly, and sent myself and the tenants an email confirming I will take over the management of the property. She has advised the current agreement will not be valid after 30/03/2019 and provided me with a new contract as a 'Let only' contract she provides to landlords for us to get the tenant to sign and essentially take over the management this is for a 6 month period and a brand new contract. She has said she has applied for the deposit to be refunded and once this is done she will return this to me to place in my own scheme. she has made reference to this in the letter to the tenant and advised I need to place this deposit in a scheme within 30 days of receipt from them (agent).
I've tried seeing if the deposit is protected and keeps coming up with no match, the only thing I can think (if it is indeed protected) is the name may not be recognised as it was a joint tenancy and I'm not sure if one or both surnames need to be on there or how it should be formatted. I've also spoken to DPS and they have advised if I send in proof of ownership they can transfer the deposit directly to me (would not confirm if there was a deposit or not due to DPA). Once proof is received and after giving the agent 7 days to agree or object or if there is no answer from them it will just be transferred.
I'm keeping my fingers crossed it was protected correctly, however if she still transfers me the money and I sign a new agreement with the tenant, put the deposit in a scheme within 30 days of receipt this will be ok?

EDIT ** I have replied to her email saying when I check on DPS website its saying no match, asked her to be honest if it was not done and if it has requested proof of more than just the ID number (now out of office until 08/03/2019 - typical!). I am also currently digging out deeds and will send to DPS tomorrow via email so I should know soon for sure.


COPY OF LETTER ISSUED TO TENANTS......
Change Of Management / Deposit Protection
Further to your recent tenancy which commenced on ******** please be advised of the following –
• We are writing to advise you that your landlord(s) will now be resuming FULL responsibility for
your current tenancy. This means that you must now contact your landlord(s) in relation to
any aspect of your tenancy. Your landlord will now make arrangements for new statutory
paperwork to be completed with yourself asap as all current statutory paperwork issued and
completed by ****** Lettings Ltd will be void from 29/03/2019
It remains the responsibility of your landlord to ensure that new statutory paperwork is
reinstated on or before 29/03/2019
• ******** Lettings Ltd will surrender all legal responsibility and liability for your tenancy from
29/03/2019
• As you know, your security deposit was lodged with our Deposit Protection Scheme (agent
ID.*******) on ******** in accordance with government regulations. Your landlord has
since requested that your deposit is now held within her custodial scheme as your tenancy
will soon be managed by her or said nominee. Please regard this letter as formal notice of our
intention to transfer said deposit to your landlord on or before 30/03/2019– in accordance with
our T's & C's Of Business. It will then be the responsibility of your landlord or nominee to
register said deposit within 28 days of receipt to remain compliant with custodial deposit
registrations
Landlord Contact Details:
**************
(T) ***********
(E) *******************
Finally, we would like to wish you well with the future of your tenancy. In our experience you landlord is extremely approachable and very friendly and we are confident that your tenancy will continue with both ease and efficiency.
If you have any further queries in relation to this letter – please do not hesitate to contact us.

Quote from: husarah on March 07, 2019, 02:32:06 PM
She has advised the current agreement will not be valid after 30/03/2019 and provided me with a new contract as a 'Let only' contract she provides to landlords for us to get the tenant to sign and essentially take over the management this is for a 6 month period and a brand new contract.

What agreement? The tenancy agreement between the occupier and their landlord, presumingly that's you, doesn't change and isn't affected by whatever's happening with your agent. All you need to do is a message, letter or whatever telling your tenant that the agent is ceasing to act as agent for you from X/Y/2019, and if they were paying the rent to the agent, pay it to you direct into bank account 123456#123456789.

If you have some kind of rent to rent agreement with the letting agent whereby the agent is the landlord of the occupier, then things get more complicated..........

Quote from: husarah on March 07, 2019, 02:32:06 PM
She has said she has applied for the deposit to be refunded and once this is done she will return this to me to place in my own scheme.

The custodial scheme isn't going to "refund" it, mid-tenancy. The only way they'll release the money is if the agent says the tenancy's over, and that they are entitled to deduction for the whole deposit, and then the tenant have to agree. They can transfer it to a different (i.e. yours) account, but that's not refunding.

@husarah, I'm kind off in a similar situation. I'm learning the hard way. The tenant ended the tenancy early and asked that the agent use her deposit to settle the rent arrears. Some of the rent and final tenancy termination costs remain unpaid whilst, the agent still holds a small balance. I put a claim with the Tenancy Deposit Scheme (TDS) but they told me yesterday 12 March 2019 that they would not be able to adjudicate in the matter since there is no dispute on the deposit. The matter is now between me and the agent, since the tenant already approved the use of the deposit to settle the rents arrears. The agent is playing GOD/cowboy/havoc with me and taking advantage at my ignorance and lack of knowledge/understanding in the matter. I'm being taking around and round in a vicious circle. I'm so upset. Overall, I feel the agent has done a very shoddy job throughout the contract period. The agent consistently failed to make payment on due dates; approved contract termination without my consent; lacked to perform proper checks on the tenant prior our signing and letting of the property. Overall, agent communicated very poorly and hardly now responds to my emails, text or calls. The whole Landlord/Agent experience has been very frustrating. Because of agent inaction I believe I have incurred a loss on the property. I want to sue to recover all costs incurred in reletting the property e.g. the rent arrear and redecoration costs. What's the best suggested approach to take to resolve the issue? 1) Is it to first raise a complaint with the accrediting body. 2) Sue agent as well as tenant? 3) Sue agent in a small Claims Court for losses incurred as they only arose due to agent acting negligently in the performance of his duties e.g. not conducting adequate checks on the tenant prior to the property being let. Also, approving the early termination of the contract and use of the deposit in lieu of the rent deposit without my approval. Additionally, not passing rentals received on due dates 4) How long, easy or difficult is it to make any claim in a small Claims Court? 5) What sort of timelines from start to finish should be expected? 5) What sort of costs are involved in filing the case, court bailiffs or recovery of debts - debts collectors fees(needed?)?

I understand your desire to sue. I fear it will consume a lot of your time, effort and money and the outcome will be uncertain. I would think again and use it as a [expensive] learning experience. You freely admit you have been ignorant and you feel as though you have been taken advantage of... there is a reason Estate Agent (and Letting Agents) are perceived as being low down the ladder in terms of honesty and professionalism - there's no smoke without fire, right?

As Landlord you do hold some responsibility for the things that happen when you give over management of your property to an Agent - just be thankful you don't seem to be running into a Deposit non-protection situation - at least it seems they did that.

I promise you, if you take a closer view of your investments then you'll not make the same mistakes again and in 5 years you won't even think about it. I would be acting in my own best interests and be ensuring that I either self-manage or have an Agent I can trust and depend upon, that my property is in the clear and in good condition ready for re-let etc.. That's where my focus would be... in short, I would be looking forwards.

1) you can, anecdotally this can be an unsatisfying wild goose chase.
2) you can, be prepared for more aggravation.
3) you can, be prepared to shoulder the onus of proof.
4) dunno.
5) easy to look up.

Thanks for your response. True, since December the whole process has been so involving and stressful. It's consumed a lot of my time. I feel terribly that I'm loosing good money to an unscrupulous tenant as well as agent. I note your comment on trying to follow the SC Court route which can be time consuming with uncertain outcomes. Thank you very much for your response. It has been most helpful!.

You have to learn to let certain things wash over you. Not everything. It's hard when you feel justice isn't going your way. The worst thing you could ever do is allow a Tenant who's intentionally playing you see how it's affecting you. You have to reduce all the noise to background level and focus on what's important... heck, you may even conclude this gig is not for you... I've always said 1 property carries all the same risks, effort and stresses but not the same rewards (that of scale) as multiple. I think, and see on here and on TV, it's often a recipe for a big black hole and much distress. People always get into it thinking it's close to passive income (hah!) and lucrative (hah-hah!).

Update - still cant get hold of the letting agent 
I have sent correspondence to the DPS who the deposit is supposedly registered with enclosing proof I own the property and they are looking into it - so hopefully I will know by the end of the week if it has been registered correctly or not.
I have arranged to do an inspection with the tenants this Saturday and to go through everything now we are managing the property ourselves - tenant has kindly sent over a copy of the current AST as I wanted to check dates, and details etc, and to my surprise they renewed a new 12 month tenancy on 30.11.2018 for 12 months when I thought they were on a periodic tenancy and have emails in Nov 2018 off the letting agents to confirm it is now periodic  this annoys me as with all the trouble we were going to look at selling the property this summer and now will have to wait.
I have 2 questions -
1. if by the end of the week the deposit is not protected we are prepared we will have to give the deposit back to the tenants out of our own money and being honest about the situation. I'm looking at drawing up a 'Full and final return of deposit' receipt for all parties to sign to basically cover us, as they can take legal action up to 6 years after if it has not been protected - I know I'm jumping the gun as not had official confirmation it has not been protected, however want every thing in order should I need it before Saturday and not feeling hopeful as its not recognising on the search area of the website.
2. Obviously we will honour the AST as it is up till Nov 2019, we will explain to them that we are looking to sell after this point so we are being upfront and honest, and offer no penalty if they find another property in the meantime they can leave before with no penalty. When is the earliest we can market the property for sale if the tenants are in contract till Nov 2019?

Many thanks for any help and advice given 

You can sell the property, to another Landlord, whenever you like, of course. The incoming Landlord would "step into your shoes".

Is there a website for landlord - landlord house sales?

Any guidance on what to include in the 'full and final return of deposit' I want to draft out something in case, so we are covered from any possible future legal proceedings!

Many thanks

Returning the Deposit and getting something in writing saying that's deemed to be in "full and final return of the Deposit" doesn't save you from future action, I think you realise this, but I just wanted to make sure you do? If you offered some kind of settlement, then it would I'd presume... but that would be putting the cart before the horse, wouldn't it?

You don't necessarily need a Landlord to Landlord (L2L?) website... you would just list is as you normally would and tag it as "investment opportunity", "with Tenant" or suchlike... and instruct your Agent, or you if taking enquiries, not to progress any of them if they stated they wanted vacant possession. You see these kinds of property listings all the time.

I was kind of hoping there was something I could do to have the re assurance that there would be no come back, as mentioned I've made the mistake of trusting the letting agents have done what they have advised both myself and the tenants they have, again I should know 100% by the end of the week when DPS are due to get back to me. But preparing for worst case scenario - I'm not planning on evicting the tenants yet and they are in contract until Nov 2019 anyway - however as soon as I become 100% aware the deposit has not been protected, I want to do the correct thing by the tenants and be open and honest about the situation, but also safeguard myself for the future as I've lost enough money with this rouge letting agents as it is! is there anything I can put in writing to safeguard myself obviously with the acceptance of the tenants?

I suppose you could have a Tenant write something to the effect that they're aware the Deposit wasn't protected and they absolve you of any responsibility, and would never initiate any action against you for that... but it would be kinda weird. I mean, there's nothing in it for them... if your relationship breaks down in any way in the future it leaves them at a disadvantage. As it stands (only if the Deposit was not protected, of course) they're sitting on a nice little earner... even honourable people can be easily tempted by, what is effectively, free money.

But, who knows, maybe an open and honest conversation can result in honest people doing honest things... it could also alert them to an opportunity for a much better holiday in 2020.

Anyway, find out first... no point jumping the gun. Find out, let us know... talk it over.

Unfortunately, I have found out today the deposit is not or ever been logged  I have several emails stating it has been done by the letting agent I'm so mad at myself for trusting people will do as they say, I'm not the only person she has conned. I'm logging it with the police tomorrow, and will also contact trading standards.
One of the other landlords I've spoken to has been told by their new letting agency the tenants need to chase or take legal action against the letting agency, I've advised I don't believe this is the case, is there any website I can refer them to, to clarify it?
I'm going to see the tenants tomorrow  hope they are understanding!

Your tenant can sue you, or the letting agent for a deposit protection penalty as the "landlord" under the deposit protection legislation of "landlord" including persons acting for the landlord. If they are seeking an order for the return of the deposit under deposit protection legislation, they would have to sue the agent as the person appears to be holding the deposit.

Come the end of the tenancy, the tenant can sue you in a simple money claim for the return of the deposit. You would then have to sue the agent for compensation for your loss. Similarly if you were sued by the tenant for the deposit penalty.

I guess you can sue the agent in the meantime for the transfer over of the deposit without that, but you wouldn't be able to sue the agent for loss from having to pay a deposit protection penalty unless and until you've actually suffered the loss. You probably want to take legal advice to see if you can settle a deposit protection penalty with the tenant, pay it, and then sue the agent for it.

I was thinking of just giving the deposit back as it is only £550 and count my losses, I've drawn up a full and final settlement recipt for all parts to sign for proof, it is just stating we have only become aware of this today and we are returning  the deposit out of our own pocket.
You see the letting agents seem to be liquidating the business and as it's a Ltd company the debts will go with the business, so unlikely to get anything back realistically so waste of time trying to get a money order. I was thinking if I explain to the tenants and return the deposit and take it as an expensive lesson to learn for future.

Returning the deposit would not satisfy your liability to a protection penalty. That you are an innocent victim yourself may well reduce the penalty to the bottom of the scale, but you are as landlord still liable. You can possibly try make the directors personally liable for misfeasance or fraudulent trading etc., but you'd need expert advice to see if that's possible.

Quote from: husarah on March 29, 2019, 07:33:32 PMOne of the other landlords I've spoken to has been told by their new letting agency the tenants need to chase or take legal action against the letting agency...

Wishful thinking. Consider the relationship - the Agent is exactly that... the Landlord's Agent. To the Tenant they are one and the same entity. The Agent acts on your behalf, in your stead, on your instructions. Any Deposit non-protection issues fall squarely onto your shoulders. This is why there's plenty of advice out there, for Landlords, saying if nothing else at least ensure the Deposit is protected yourself... exactly because of the fact you are relying on a potentially non-professional, non-capable, non-caring third party doing something on your behalf when the repercussions don't affect that third party.

As the Deposit is £550... if a case was brought against you (and that is, of course, not a certainty at all) then you would be liable for a penalty of between 1x and 3x the value of the Deposit - no ifs, no buts - it's what's called a black-and-white open-and-shut case... was the Deposit protected correctly and on-time? No. Penalty due. All of the extenuating circumstances are really all around how culpable you are... whether you're a "bad 'un" who cocks a snook at legislation (since 2007, mind)... whether this is your MO, or you're just an[other] ignorant SOB who has fallen foul of Agent sharp practices, tried to find out about the situation and rectify it when you did.

You obviously fall into the latter category so any theoretical penalty would be more likely 1x.

However, you can be doing things now to look after everyone's interests... for example, you could protect a £550 Deposit (where is that £550, has it been stolen?) now with a Scheme or you could move the tenancy to one without a Deposit (I'd say that's unwise) but the Tenant is still due their £550 - it's their money, no-one else's, right? Letting the tenancy run with a notional Deposit existing, one that's definitely not protected today, and saying the Tenant is ultimately responsible for finding it, is probably very unwise.

Quote from: husarah on March 29, 2019, 09:51:50 PMI was thinking of just giving the deposit back as it is only £550 and count my losses... ...I was thinking if I explain to the tenants and return the deposit...

It's not a terribly bad plan, but it doesn't absolve you of the potential legal follow-on. A lot will depend on your relationship with your Tenants. You sticking something in front of them and pressuring them to sign it there and then ain't a good idea in my mind, either... it could constitute a subtle form of harassment of people who are, at the moment, probably unaware of their rights.

Harsh this... but at the moment you've committed a form of crime... you should really be on the run! Remember - your absolute maximum exposure is a few months of rent, by the sound of it... hopefully not the end of the world for you. They are in your property until the end of this year anyway... keep them on-side as best as you can.