Q. My landlord has not protected our six week dilapidation deposit, despite us following advice and writing him several letters asking her to do so. My flat mate however does not want to go via the court route and wants to withhold the last month’s rent in lieu of our deposit, but I’m reluctant to do this as I know it’s not legal. We know he is in financial difficulty and has missed mortgage payments on the property, which makes it seem likely that he will not return our deposit back.  What is our best option?

A. Basically if it is protected in a scheme it is safe, if it is not protected, it may not be. Since April 2007 all deposits for assured shorthold tenancies have to be protected in a government authorised tenancy deposit scheme. There are three tenancy deposit schemes:

  • The Deposit Protection Service
  • My Deposits and
  • The Dispute service / TDS

When a tenant pays their deposit to his landlord or his agent, they are now legally bound to arrange for the deposit to be protected within 14 days and give you a form with information about the scheme they have used. This will normally indicate that your deposit has been protected. And you are able to go on line to check by contacting any one of the three schemes to find out if it has in fact been registered.  If as you mention your landlord has not protected your deposit, you have already taken the first correct step by writing to him to tell him that your deposit needs to be placed in one of the three government schemes. You should warn him that if this is not done there is a penalty of three times the deposit sum for non compliance. Hopefully your landlord will then arrange for your deposit to be protected so there won’t be any need for you to worry about your flat mate withholding the last month’s rent in lieu of having your deposit returned, this was often done by tenants prior to the introduction of the tenancy deposit scheme coming into force although you are not legally supposed to do this I must add. The only option to take if your Landlord does not protect your deposit is to approach a solicitor and take legal advice to make sure you recover your deposit on vacating.