Holding Deposit post tenant fee ban

Topic: Holding Deposit (after tenant fee ban)

Resolution requested - Holding deposit refund

£288.46

The tenant said:

she arranged to view the property on 13 July
two days after the viewing, the agent confirmed the landlord had agreed to proceed and confirmed the monthly rent amount
that day, she paid one weeks' rent as a holding deposit
three hours later, she requested a full refund, as the move in date was too soon and reflected on the information given, that the landlord may want to sell the property 'soon'
the agent refused, saying that the holding deposit was non-refundable
a conditional agreement was then discussed to delay the move in date and not sell the property until the tenancy ended,
on 3 August, she asked the agent why the holding deposit had still not been refunded, but received no reply
she was never told in writing why the full holding deposit was being kept by the agent and believes this is against the Tenant Fees Act 2019

The agent responded saying:

the property was taken off the market, after the tenant made an offer to rent the property and the holding deposit was received
the application for referencing was processed before the tenant somewhat confusingly said they did not want to proceed and then asked if she could move in at the beginning of August instead
the tenant was asked to confirm her position by 24 July, however did not respond until 3August which was past the deadline for agreement date and the holding deposit did not need to be refunded

Emails, holding deposit form, text screenshots

The prospective tenant paid the holding deposit on 15 July
This made the deadline for agreement date the 30 July (the 15th day after the holding deposit was paid) and which the evidence confirmed both parties initially agreed to
The agent offered the prospective tenant until the 24 July to confirm if they were going to enter into the agreement
The agent, having made all reasonable attempts to make sure the tenancy went ahead, heard nothing more until after the 30 July and the tenancy did not start
While the prospective tenant had not kept to the 'deadline for agreement’ date, the agent had not provided the tenant with a draft tenancy agreement or reasons for keeping the holding deposit, in wirting within 7 days after the 'deadline for agreement' has passed which is a requirement under the Tenant Fees Act, so the full holding deposit was repayable

just taking a holding deposit and saying that it is non-refundable is unenforceable
a tenant must be clearly told why you are requesting a holding deposit, the amount required and in what circumstances it can be retained
a tenant must also be provided with a draft tenancy agreement before a holding deposit is taken
where a tenancy does not go ahead, the tenant is entitled to be refunded with a portion of the holding deposit where it is reasonable to do so
if the Tenant Fees Act rules for retaining the holding deposit are not followed, it will be refunded to the prospective tenant or to the person who paid it
the Tenant Fees Act makes it clear that, a holding deposit must be refunded when a tenant does move in unless it isagreed that it can be used as part of the deposit or the first months' rent

Under the Tenant Fees Act 2019 schedule 2 and the Landlord_Agent Guidance p33, the rules on Holding Deposits are explained in depth.

For a summary please see the Property Redress Holding Deposits Guide_England 2019