Here is a question to the blog clinic from Bruce on behalf of a friend
My friend had a tenancy with a National Franchise. The initial Agreement was for 6 months and they insisted she renew every 6 months being unwilling to grant a longer period and charge £40 each time.
She found a council house and wanted to leave early but they insisted on charging her rent until a new tenant was found. Now she has moved out two months before the end they are insisting on charging her a release fee of £200 plus Vat.
In the paperwork they have sent her is a copy of a Particulars of the Deposit Scheme which she was asked to sign in 2010 showing it is lodged with the DPS scheme. This paper states it is giving her the statutory information they need to but there is no scheme rules attached or details of what to do if she disputes any deductions.
My questions would be this:
1. If they have not reprotected the Deposit each time she has renewed can they legally make any deductions from it?
2. If they have not provided the scheme rules at all let alone at each renewal is it a valid deposit?
3. If as it would appear they have not reprotected the last time how does she go about making a claim against the Agent for failing to protect the deposit correct;ly in accordance with the Housing Act?
4. Are they entitled to make a charge which is shown in the Agreement for a release fee of the full amount of £200 + vat when there is only two months remaining and it seems an excessive amount. If it is to cover the Landlords reletting cost surely it should be done on a sliding scale as he would have had to pay the full fee anyway in May. Is there anyone she can complain to about unfair charges?
Your help and comments would be appreciated.
My answers are as follows:
1. They may be able to, but this would be offset against the penalty which your friend is entitled to claim for non protection of the deposit
2. It sounds to me as if they have not complied with the deposit regulations – your friend is in a good position as they will now have no defence to a claim for the penalty
3. She would need to make a claim through the County Court. I discuss the procedure on this old post here. However now the regulations have changed your friend may be able to find a firm of solicitors willing to offer a no win no fee.
4. It sounds as if it could be an unfair term in the tenancy agreement. She can complain to the Office of Fair Trading or any Trading Standards office.
1) Re-protecting the deposit on renewal isn’t necessary (well, not with the TDS and I presume DPS is the same). All the agent has to do at the end of each fixed term is to renew it on the database and keep the information on the register up to date (e.g. the new expected end date). You can login with your reference number they provided at the start of your tenancy to see if your deposit is still registered. It’s a bit of a pain with the DPS scheme.
2) Make sure you haven’t overlooked or lost the prescribed information. You say they received ‘Particulars of the Deposit Scheme’ but not the ‘rules and regulations’. Are these not one and the same thing? The DPS and TDS make it easy by having a template form and this should be provided (either in the tenancy agreement or separately) along with the Terms & Conditions of the Scheme (for the TDS it’s a leaflet about the scheme, not the full terms). The template should also be signed by the landlord and tenant to signify the info provided is correct. I notice your friend signed something; perhaps it was the template form?
I would compare your agreement and supporting documentation carefully with the prescribed information required by the DPS (shown here: https://www.depositprotection.com/documents/prescribed-information-template.pdf).
CLG advise that the agent should re-issue the prescribed information with each renewal, to be on the safe side. However, agents may take the more pragmatic view that they only need to do that if anything has changed. So you may not necessarily get new prescribed info on each renewal.
3) This doesn’t really apply provided it is still protected and you had the prescribed info (see point 1 & 2).
4) I wouldn’t jump to the conclusion that it is necessarily an unfair fee. We need more info. Your friend really needs to get more info from the agent as they don’t seem to know what the fee is for. Is it explained in the covering letter or the tenancy agreement? It could be all sorts of things or a combination, e.g. check-out fees, re-letting fees, compensation for loss of rent etc. etc. If it is just a ‘release fee’ and they can’t justify it then it may very well be a bit dodgy.
Thanks for your answer Jamie, much better than mine ;)
Tessa
Have only just seen this and cannot respond in detail now as we are about to entertain – to the surprise of some people I do actually have a life!!
I agree with you mainly on points 2 and 3 and Jamie probably on point 4.
But on point 1 Jamie is wrong. Satisfying the TDP requirements EVERY TIME a new tenancy is created i.e. first relationship and every subsequent one if a new agreement is signed AND if the tenancy goes periodic, has two elements.
Protect the deposit – fine it may already be protected in a scheme and on an ongoing basis (thought with Mydeposits perhaps at the cost of yet another fee).
But that is where the simple life ends – the PIN has to be renewed. It is a new tenancy so you must not only protect the deposit but also ISSUE A FRESH SET OF PRESCRIBED INFORMATION.
I will agree with Jamie it’s a pasion – but also the Law
Of course, one has to satisfy the legal requirements on renewals but I maintain that it doesn’t necessarily mean always re-protecting the deposit or re-sending the Prescribed Info.
I said that I presumed the DPS scheme works in the same way as the TDS scheme. When you renew a tenancy on the TDS website the unique identifier doesn’t change. I haven’t used the DPS website so I’m not sure if the PIN changes or not.
Regarding the re-issuing of the Prescribed Information, the sentence below from my post actually comes direct from the TDS documentation:
“CLG advise that the agent should re-issue the prescribed information with each renewal, to be on the safe side. However, agents may take the more pragmatic view that they only need to do that if anything has changed.”
It may very well be best practice to re-issue prescribed info on each renewal. If on the DPS system the PIN does indeed change on each renewal, then you may have a point in this particular case where the deposit is lodged with that scheme. However, your statement that you must send the Prescribed Info in every case isn’t necessarily true in the case where the deposit is lodged with another scheme.
If on a renewal an agent had only issued a new a new PIN and nothing else had changed in the tenancy agreement or the remaining prescribed info, then I wonder how a judge would view it?