How to claim your tenancy fee back.
Actually most people living in privately rented flats have a type of tenancy called a short assured tenancy. This did not exist at the time that the 1984 Act was written but the Housing (Scotland) Act 1988 which created the category of short assured tenancy specifies that the protection from tenancy fees provided by the 1984 Act still applies to short assured tenants
You could try refusing to pay the fees but in most cases the letting agency will just tell you that you cannot move in unless you pay up and it’s difficult to find any agency which doesn’t charge the fees. However you have a legal right to claim the money back.
You can claim your tenancy fee back.
First step - send them a letter. The first thing you need to do is ask your landlord or letting agency to refund the money explaining calmly and politely that they cannot legally charge you any additional fees and that they are required by law to give it back. The best way to do this is send them a letter by recorded delivery because then they cannot deny that the request was received at their offices.
If I do not receive a response within 14 days I will be forced to take this matter to the small claims court.
You are lucky if the letting agency decides that it is easier just to refund your fees at this stage but in case they do not you will need to have proof (in this case you can use confirmation about sending them a latter by recorded delivery) that you have tried to resolve the matter yourself before you can move on to the next step such as raise a small claims action.
Raise a small claims action
You have asked your landlord or letting agency to refund the money and have sent them a letter by recorded delivery but have not received a response within 14 days. It is means that it is a time to go to the Court.
Going to Small Claims Court sounds a bit scary but it is really a lot easier than you might think. You do not need to hire a lawyer because the small claims process is designed so that the average person can represent themselves and in a case as straightforward as this one it is unlikely that you will be asked to argue your case. All you have to do is fill in some forms explaining why the letting agency owes you money and return them to the Sheriff Court along with the court fee (£15 for claims under £200 or £65 for claims over £200) which you can even claim back from the landlord if you win.
You can download a copy of the form which is called a summons from the Scottish Courts website.
The form you download will include two copies – the "Pursuer`s Copy" and the "Defender`s Copy" – and you need to enter the same information in both.
Then you need step by step guide to the form:
1. The contact details of the court.
2. Pursuer`s details: that is you.
3. Defender`s details: enter the landlord/letting agency`s name and address.
4. The pursuer claims from the defenders the sum of (amount) and the expenses of bringing the action.
5.a Defender`s solicitor: unless the letting agency`s solicitor has already contacted you regarding this matter put "none".
5.b If you have paid the court fees electronically include the reference here.
This part is completed by the Sheriff Clerk so leave it blank.
This is your Statement of Claim.
All other parts of the form will be completed by the court staff.
You can send the completed forms and payment to the Sheriff Court electronically or by post or personally. If you are concerned about the process you might find it reassuring to return the form in person (please note that you will be searched on entering the building) as the court staff can check that the form has been filled in correctly and answer any questions you might have.
Third step - wait for a response
After you have sorted out and submitted the paperwork the court will deliver the summons to the letting agency. They will be given a deadline to respond by which time they have to either admit liability or dispute the claim.
In most cases the cheapest option is for the landlord or letting agent just to give you the refund so there is a very good chance that this is what they will do. It is easier for them because it saves them the hassle of going to court over something they cannot win and it would cost them more to hire a lawyer to help them try to dispute the claim than it would to refund the fees.
Fourth step - if you have to go to the court
In case of the letting agency disputing the claim you may need to attend court or appoint someone else to attend on your behalf – this can be a friend relative or a representative of an organisation like the Citizens Advice Bureau. You will have several weeks notice before if you have to attend court. It will give you time to prepare and seek advice if necessary and you may even be able to claim for lost wages if you have to take time off work.
If you have to go to court the law is on your side. The legislation makes it very clear that it is illegal for a landlord or letting agent to ask you to pay any additional fees so as long as you can show that what you paid wasn`t part of your rent or deposit they have no excuse for not giving you a refund.
Ideally you should have a receipt (this is often bundled with your lease paperwork) bank statements showing how much you paid or correspondence asking you to pay the fees. If you do not have anything like this try to get some evidence that the landlord or agent normally charge fees which should be pretty easy because most of them advertise the fees quite openly.
It seems looks like a long way to get own money back but it is your money and the letting agency have taken it from you illegally.