Letting Agent Or Landlord Responsible For Securing Deposit?

Whose responsible?Is it the Landlord’s responsibility to put the security deposit into a Tenancy Deposit Protection Scheme, or the Letting Agents?

For those Landlords out there that are using Letting Agents, are you certain that your agent has deposited your tenant’s deposit into a legally required tenancy protection scheme? What happens if your agent receives the deposit, but fails to protect the deposit into a scheme, and you find yourself in the middle of a legal debacle because your tenant has clocked on that the deposit isn’t protected? Whose responsible then? You, as the Landlord, or your letting agent?

The answer…THE LANDLORD! The Landlord is ALWAYS responsible.

However, tenancy deposits are covered in Part 6 of the Housing Act 2004. (212 – 215) and it clear that the rules do not just apply to Landlords but also to anyone acting on their behalf:

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 (Section 212(9))

While it is ultimately the Landlord’s responsibility to ensure that the deposit is secured, the responsibility of actually securing the deposit can fall onto the letting agent.

If the contract (by contract I mean the Agent’s Terms & Conditions, NOT the Tenancy Agreement) does not task the Agent with protecting the deposit, he should pass it straight to the Landlord. If the agent does not pass over the deposit promptly, the landlord is still responsible for protecting the deposit within 30 days of the agent having received it.

If the contract between the Landlord and Letting Agent states that the Agent is responsible for protecting the deposit on the landlord’s behalf, then the agent would potentially be liable to prosecution if he fails to do so; but by the Landlord rather than the tenant.

However, tenants should always pursue the Landlord if a deposit has not been protected – if the Landlord thinks that the deposit should have been protected by the Agent they may have a separate case against them but that does not take away from the Landlord’s responsibility. The Landlord should ALWAYS check that the deposit is protected, even if it isn’t their responsibility to protect the deposit.

So, it can actually end up in a there-way brawl. The tenant will chase the Landlord, and the Landlord will chase the letting agent. Hey, maybe that’s how you like it…

Like this post? Then maybe you should sign up to my FREE newsletter so you receive more like it!

4 Comments- Join The Conversation...

Guest Avatar
sue devereux 22nd August, 2009 @ 17:29

I have a deposit from my tenant can you advise where to put this foc thank you

1
Guest Avatar
mary 18th September, 2013 @ 21:21

I did not realise that I had to protect the deposit of my new tenants. They are now saying that the tenancy agreement is null and void. I have read somewhere that the deposit does not have to be protected until after they have taken up residency. Is this true? They are not due to move into the property until the 23rd September.

I would really appreciate some advice.
Mary

2
Guest Avatar
John 7th April, 2014 @ 13:25

Hi Landlord, I don't know whether you'll still pick this up but I'd appreciate an opinion on the following.
I've used a letting agent for about 5 years. I've recently switched to a new agent. The new agent has requested details and transfer of deposits for incumbent tenants. The old agent isn't replying. Various tenants have confirmed they have paid deposits to the old agent but have never received any documentation of registration.
Furthermore, tenants that have now given notice have requested back their deposits from the old agents who are now saying that they don't have them; having transferred them to the new agent. This is a lie.
To me this looks like out and out theft. I'm just concerned that I might end up with some liability if I stir things up, report it to the police or whatever.
Opinion please?

3
Guest Avatar
svet 22nd July, 2016 @ 13:52

i am a tenant, and my agency did not protected the deposit since january 2016. what is my next step, what i can do. Week ago I have recived msg from agency that landlord what his flat back.

4

Please leave a comment...

Nobody

Nobody

Landlord

Landlord

Tenant

Tenant

Agent

Agent

Legal

Legal

Buyer

Buyer

Developer

Developer

Enthusiast

Enthusiast