Is it the Landlord’s responsibility to comply with the tenancy deposit legislation (i.e. secure the the security deposit into a Tenancy Deposit Protection Scheme) or the Letting Agents?
A question often asked by landlords that used a letting agent to find tenants, usually after they have discovered that their agent hasn’t secured their tenant’s deposit.
The answer…THE LANDLORD! The Landlord is ALWAYS responsible.
However, tenancy deposits are covered in Part 6 (212 – 215) of the Housing Act 2004, clearly stating 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…
Disclaimer: I'm just a landlord blogger; I'm 100% not qualified to give legal or financial advice. I'm a doofus. Any information I share is my unqualified opinion, and should never be construed as professional legal or financial advice. You should definitely get advice from a qualified professional for any legal or financial matters. For more information, please read my full disclaimer.