Full deposit not protected?

[jack864]

Evening all,

I’ve had a number of issues with my estate agent and getting my deposit back, summary of what has happened so far:
-Estate agent/LL had taken over a month to provide me a breakdown of what they were planning on detucting
-They failed to send the undisputed amount to me within 10 days (had to re ask after 10 and they eventually sent it after another 9 days)
-currently planning on disputing the LL claiming for; future painting of scuffs, cleaning and replacement of a rug.

Main thing I’m looking for advice for now is how they have protected the deposit. From 2016-2017 they protected the full amount (shown on the certificate), from 2017-2018 after contract was renewed the new certificate only shows part of the deposit protected (£450 less than the full amount).

When i raised this with them 2 months after the end of my tenancy stating i was looking to claim compensation they changed the details on TDS to show the full amount being protected and sent through a new certificate.

My question is, did they breach the law during the period I was in the property?
By changing the amount post tennancy does this protect them?

When I called TDS they stated they could only see the ammended amount and not the amount they originally said was the deposit so they can only assume the full amount was protected.

Thanks in advance.

Jack

[R0b]

Strictly speaking yes they have breached their obligations to protect the deposit.

If I recall, Section 214 of the Housing Act 2004 says the following where a LL has failed to protect the deposit within 30 days.

(4) The court must order the landlord to pay to the applicant a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

Note my underline above, the word "must" implies an obligation and that there is no discretion for a Court not to award you any compensation, however small the breach is but whether you get 1 or 3 times the amount depends on the seriousness of the breach. They seem to have sent you a certificate protecting your deposit but not the full amount and they corrected it as soon as you made them aware albeit after 2 months after the end of your tenancy, that might be seen as mitigation. However, the update following the end of your tenancy doesn't really make sense if your tenancy has ended.

It's unlikely you would get three times your deposit but if you take into that they protected some of your deposit, although it was not fully protected throughout your tenancy, you might be able to press for two times the amount. Also if they are an experienced LL and the lettting agent has been around for years then you could also argue that too. Ultimately its for a judge to decide what amount to award.

I believe you need to make a Part 8 Claim which should include your costs of the application too as well as compensation awarded. Has the LL indicated whether they are prepared to settle and I assume you have the original certificate showing the lower amount?

[jack864]

Thanks for your reply!

I have three emails with from the estate agent sending the certificate over, the first one sent when I renewed the agreement showing the lower amount, the second one at the end of the tenancy showing the same lower amount and the one sent yesterday with the increased amount.

They have switched to denial and stating as the TDS site shows the full amount there isn’t an issue and the full amount is protected.

I’m seeing if I can get TDS to send me over details of what was changed last week on the certificate as on the site it only shows the date it was modified and not what was modified.

As I didn’t screenshot the TDS site showing the lower amount I’m assusming they may start saying they sent through the wrong certificates through and they updated it to the full amount within the 30 days.

[R0b]

Obviously I am not privy to the email conversation between yourself and the LL / Letting Agent but if you have a certificate that clearly shows the deposit amount is lower than what you paid them, I personally don't think they have a leg to stand on.

If you haven't already, you should clarify with the LL / Letting Agent the basis of their denial of liability - are they taking the position that the deposit amount was protected within 30 days of you handing the deposit over to them and therefore no liability has occurred? If the LL/LA confirmed this in writing then I think they would be in a very difficult situation to then change that position if you issued a claim, because that's something you can rely on as evidence as part of your claim. Of course you don't tell the LL / LA in your email that you have all of these certificates showing the lower amount because then you are basically handing them a defence on a plate (whatever that might be).

TDS should hold a record of any updates to the deposit so you are right along the lines of making those inquiries. I'd be inclined to take that a step further and make a subject access request for everything TDS hold about you, which would include any certificates issued as well as amendments made and any other relevant notes - under GPDR they have one month of receiving the request to comply.

The way I understand Section 214 it is a strict liability which in other words means, you are either compliant or you are non-compliant.

I've tagged Crazy council who should be able to shed more light on this or fill in any gaps because I have limited experience of this.