Letting agent refusing to release deposit
Discussion
Hi,
I’m in a bit of a situation and looking for some sensible advice on what to do next.
I’ve posted before about the problems I have had with a letting agent my wife and I used to let our flat. There is a post here about us giving them notice during a tenancy and them refusing to release keys or transfer the tenant’s deposit to our DPS account. There's a thread on the problem here:
https://www.pistonheads.com/gassing/topic.asp?h=0&...
(A short recap is that when I gave the agent notice a year ago that I wished to stop using their services they demanded a very high ‘cancellation fee’, which wasn’t mentioned in the contract with them. I paid them a far lower fee which I considered to be reasonable. They refused to release the keys I had given them for the property and also refused to move the tenant’s deposit into my DPS account. Things reached stalemate at that point.)
The tenant has now given notice, with the tenancy due to end this weekend. The tenant has been excellent and I am on very good terms with them. I am happy to give them the full deposit back; they have been in the property for over six years and any deterioration is very much fair wear and tear. I am in regular (nearly daily) contact with them and have little doubt that they will move out as planned.
The pressing problem is the deposit. The tenant has requested via the DPS that the deposit should be returned. That request was sent to the agent (who controls the deposit) who has refused to return it, telling the tenant that as the landlord has outstanding cancellation charges they won’t return the deposit until this amount has been paid.
The agent also wrote to me saying that they “need to re-visit this case again and come to an agreement before we can do any further work on this tenancy/ property.” In further eMails they have said that they consider actioning the release of the deposit to be ‘work’ and they won’t do this without a fee being paid.
I have checked the contract I have with the agent and none of these ‘fees’ are mentioned in it.
I have spoken with the DPS who have said that if the agent won’t play ball after the tenant’s request for the return of the deposit then the tenant can make a ‘statutory declaration’ and this can potentially force the agent’s hand. This seems like the backstop solution, but I have questions.
1. A ‘statutory declaration’ would need to be witnessed by a solicitor or magistrate, who may (and probably will) charge. How hard is it to find someone who can do this and how much are they likely to be? Any suggestions would be welcomed.
2. An alternative would be for me to refund the deposit to the tenant from my own pocket and sue for the return of the deposit from the DPS. If I was to do this then I presume I would sue the agent, and it would go through the small claims court. Is this correct?
So, which is the best option; statutory declaration or pay the deposit back myself and sue the agent?
I should probably add that I feel a bit guilty for this situation; I cancelled the contract I had with the agent in order to save money, and if the end result is significant hassle for the tenant then I would like to minimise the hassle as much as possible. If the witnessing of the statutory declaration will cost the tenant money then I will refund them. However there is also the matter of time the tenant may have to spend sorting this all out, as well as the time they may have to wait to get their deposit back; normally a tenant would expect it back within a week but it sounds like the statutory declaration route may take 5 or 6 weeks, which will be rough for the tenant.
In short, what would you suggest? Thanks.
I’m in a bit of a situation and looking for some sensible advice on what to do next.
I’ve posted before about the problems I have had with a letting agent my wife and I used to let our flat. There is a post here about us giving them notice during a tenancy and them refusing to release keys or transfer the tenant’s deposit to our DPS account. There's a thread on the problem here:
https://www.pistonheads.com/gassing/topic.asp?h=0&...
(A short recap is that when I gave the agent notice a year ago that I wished to stop using their services they demanded a very high ‘cancellation fee’, which wasn’t mentioned in the contract with them. I paid them a far lower fee which I considered to be reasonable. They refused to release the keys I had given them for the property and also refused to move the tenant’s deposit into my DPS account. Things reached stalemate at that point.)
The tenant has now given notice, with the tenancy due to end this weekend. The tenant has been excellent and I am on very good terms with them. I am happy to give them the full deposit back; they have been in the property for over six years and any deterioration is very much fair wear and tear. I am in regular (nearly daily) contact with them and have little doubt that they will move out as planned.
The pressing problem is the deposit. The tenant has requested via the DPS that the deposit should be returned. That request was sent to the agent (who controls the deposit) who has refused to return it, telling the tenant that as the landlord has outstanding cancellation charges they won’t return the deposit until this amount has been paid.
The agent also wrote to me saying that they “need to re-visit this case again and come to an agreement before we can do any further work on this tenancy/ property.” In further eMails they have said that they consider actioning the release of the deposit to be ‘work’ and they won’t do this without a fee being paid.
I have checked the contract I have with the agent and none of these ‘fees’ are mentioned in it.
I have spoken with the DPS who have said that if the agent won’t play ball after the tenant’s request for the return of the deposit then the tenant can make a ‘statutory declaration’ and this can potentially force the agent’s hand. This seems like the backstop solution, but I have questions.
1. A ‘statutory declaration’ would need to be witnessed by a solicitor or magistrate, who may (and probably will) charge. How hard is it to find someone who can do this and how much are they likely to be? Any suggestions would be welcomed.
2. An alternative would be for me to refund the deposit to the tenant from my own pocket and sue for the return of the deposit from the DPS. If I was to do this then I presume I would sue the agent, and it would go through the small claims court. Is this correct?
So, which is the best option; statutory declaration or pay the deposit back myself and sue the agent?
I should probably add that I feel a bit guilty for this situation; I cancelled the contract I had with the agent in order to save money, and if the end result is significant hassle for the tenant then I would like to minimise the hassle as much as possible. If the witnessing of the statutory declaration will cost the tenant money then I will refund them. However there is also the matter of time the tenant may have to spend sorting this all out, as well as the time they may have to wait to get their deposit back; normally a tenant would expect it back within a week but it sounds like the statutory declaration route may take 5 or 6 weeks, which will be rough for the tenant.
In short, what would you suggest? Thanks.
Report the agent to their Ombudsman.
That may speed up the delivery of the return of deposit.
The deposit belongs to the tenant and has nothing to do with the agent's dispute with you, as you have established, so report them.
I'm surprised the Deposit holder can't force a return if no dispute on deductions has arisen? It should be an automatic process. And if the agent's are proposing deductions from their deposit to cover what you clearly don't owe, that's absolutely absurd and hopefully something the Ombudsman would look at fining them for.
That may speed up the delivery of the return of deposit.
The deposit belongs to the tenant and has nothing to do with the agent's dispute with you, as you have established, so report them.
I'm surprised the Deposit holder can't force a return if no dispute on deductions has arisen? It should be an automatic process. And if the agent's are proposing deductions from their deposit to cover what you clearly don't owe, that's absolutely absurd and hopefully something the Ombudsman would look at fining them for.
The deposit must be returned within 10 days. Agencies hate people who know the law and will usually pay up when this clause is pointed out to them.
They will be in serious trouble for breaking the rules of the TPS.
When I was renting the agent was in no hurry to return the deposit. As soon as I quoted the legislation it was in my account the next day.
Complain to the ombudsman if you get nowhere, it is quite amazing what powers they have. I am sure once they are involved you will instantly get the deposit back.
As a landlord myself, I would say there is a special place in hell reserved for letting agents as they are all useless
s.
They will be in serious trouble for breaking the rules of the TPS.
When I was renting the agent was in no hurry to return the deposit. As soon as I quoted the legislation it was in my account the next day.
Complain to the ombudsman if you get nowhere, it is quite amazing what powers they have. I am sure once they are involved you will instantly get the deposit back.
As a landlord myself, I would say there is a special place in hell reserved for letting agents as they are all useless
s. Point out to the agency, in writing, that:
Any dispute they have with you regarding cancellation is not a dispute with the tenant;
You regard the condition of the property as being such that the entire deposit should be released to the tenant without delay.
Make sure that the tenant knows you have done this. Better still, copy them on the letter so that they can provide this to the DPS. There is a possibility that it might be accepted instead of the stat dec?
In terms of the stat dec, might the likes of CAB be able to assist in indemnifying a magistrate who could asssit?
Regarding the keys: get a locksmith. Probably only looking at a couple of hundred quid to gain entry and change lock.
Any dispute they have with you regarding cancellation is not a dispute with the tenant;
You regard the condition of the property as being such that the entire deposit should be released to the tenant without delay.
Make sure that the tenant knows you have done this. Better still, copy them on the letter so that they can provide this to the DPS. There is a possibility that it might be accepted instead of the stat dec?
In terms of the stat dec, might the likes of CAB be able to assist in indemnifying a magistrate who could asssit?
Regarding the keys: get a locksmith. Probably only looking at a couple of hundred quid to gain entry and change lock.
Guys.
Thanks for the answers. I know that what the agent is doing is wrong (illegal) and so does he, but he's a bully and an arse and won't back down.
I complained to the TPO about him not allocating the deposit to my DPS account and about him not returning the keys when we dispensed with his services a year ago and the TPO said they wouldn't get involved because there was a commercial dispute. I've now called the TPO again and they seem to think that they may have not considered the matter fully when I made the complaint and are looking at it again. Thanks for that prompt.
They also said that this is a matter for the tenant not the landlord, as the tenant is the one being financially disadvantaged by this. (For reference - I am the landlord). I am keen to fight the tenant's case as hard as possible as I feel a bit responsible for this so will do all I can to help them. They are a young family and money is short for everyone these days, and they have been excellent tenants.
I'll keep this thread updated with progress. Thanks for your help.
Thanks for the answers. I know that what the agent is doing is wrong (illegal) and so does he, but he's a bully and an arse and won't back down.
I complained to the TPO about him not allocating the deposit to my DPS account and about him not returning the keys when we dispensed with his services a year ago and the TPO said they wouldn't get involved because there was a commercial dispute. I've now called the TPO again and they seem to think that they may have not considered the matter fully when I made the complaint and are looking at it again. Thanks for that prompt.
They also said that this is a matter for the tenant not the landlord, as the tenant is the one being financially disadvantaged by this. (For reference - I am the landlord). I am keen to fight the tenant's case as hard as possible as I feel a bit responsible for this so will do all I can to help them. They are a young family and money is short for everyone these days, and they have been excellent tenants.
I'll keep this thread updated with progress. Thanks for your help.
Get the tenant to request the return of the deposit from the DPS, this is simple to do online.
Instruct the Agent to release the deposit in full. If they refuse make a formal complaint and then when they still refuse complain to the Ombudsman. All a pain to do but the Agent will have to decide if it’s worth the bother of dealing with the complaint and then with the Ombudsman. Keep the complaint solely to the Deposit so the Ombudsman will deal with it.
In due course once the tenant starts the deposit return process with the DPS it will get to the Statutory Declaration part (presuming the Agent won’t agree to its release). You don’t need a magistrate, just a notary public or a solicitor. There is a legally set fee of £5 for a statutory declaration, so its relatively straightforward and cheap to do.
Instruct the Agent to release the deposit in full. If they refuse make a formal complaint and then when they still refuse complain to the Ombudsman. All a pain to do but the Agent will have to decide if it’s worth the bother of dealing with the complaint and then with the Ombudsman. Keep the complaint solely to the Deposit so the Ombudsman will deal with it.
In due course once the tenant starts the deposit return process with the DPS it will get to the Statutory Declaration part (presuming the Agent won’t agree to its release). You don’t need a magistrate, just a notary public or a solicitor. There is a legally set fee of £5 for a statutory declaration, so its relatively straightforward and cheap to do.
DPS rules dont depend on the letting agents. Once the tenant raises their request a process is started that could take up to 3-4 months.
DPS make a decision and release funda themselves. Letting agent can claim funds based on a rule book.
Landlord charges arent in the book.
Tenant will get funds through procedure. If landlord lies about reason of delay he wont be able to provide proof of deposit withholding.
Tenant will wait 4 months and get his money.
Lots of stress for you and there are issues you are facing. Your tenant getting deposit back is not one of them.
Do you have any further questions op?
DPS make a decision and release funda themselves. Letting agent can claim funds based on a rule book.
Landlord charges arent in the book.
Tenant will get funds through procedure. If landlord lies about reason of delay he wont be able to provide proof of deposit withholding.
Tenant will wait 4 months and get his money.
Lots of stress for you and there are issues you are facing. Your tenant getting deposit back is not one of them.
Do you have any further questions op?
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