Here is a question to the blog clinic from Sophie who is a tenant:
I have recently moved into my property and paid the deposit and first months rent followed by 2nd months rent to the letting agent.
The landlord never received the money and is suing the agent, who is not taking responsibility as they are now a limited company.
My deposit was not registered, I don’t have a receipt but just an email confirming I have paid my deposit. (And my bank statements showing a bank transfer) (although £1500 was paid by cash)
Who is liable for my deposit? Will I get it back and when do I sue or request it for it as I’m signed up to a years lease.
I have to say that I feel sorry for your landlord, Sophie. The fact that you paid your rent to the letting agent protects you (so the landlord cannot ask you to pay it again) and the landlord’s only option of recovery is via the agents.
Likewise the landlord is liable to you for the deposit – even though you paid it to the agents. The landlord is also liable for the penalty payment (which you can claim due to the failure to protect within the 30 days time limit) – even though this was the fault of the agents and not him.
So you can sue your landlord. The question is can you also sue the agent? This begs the quesiton – which agent? The person who took the deposit or the limited company which has now taken over the business.
Lets take a look at the act. Its says in s212(9)(a)
references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies
My view is that it is the person who was acting as agent at the time the deposit was paid who will be liable. The person you paid the money to.
So if you bring proceedings for the return of your deposit and the penalty, it is that person who should be joined into the proceedings with your landlord. Although I suspect you will have a better chance of recovery from the landlord, so it is the claim against the landlord you should concentrate on.
As to when you make the claim – you can bring it now if you want. Breach of the regulations entitles you to reclaim the deposit and apply for the penalty at any time after the 30 day time limit.
Reflecting on this case, I must say it sounds like pretty sharp practice to me if the agnet has indeed taken payments as agent for rent and deposit, and then refused to account for them on the basis that it is since incorporated.
I would be amazed if this agent is a member of any of the agent regulatory bodies, but a complaint can still be made to the local trading standards office.