Landlord trying to keep deposit

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    #16
    Originally posted by cherrie View Post
    Below the second reference it says how to give notice.
    Sent by ordinary post in a prepaid letter, properly addressed to the landlord or agent…..If any Notice or other document is sent by ordinary post it shall be deemed to have been served 48hours after it was posted.
    You did exactly what your contract required, so notice is deemed served.

    You may wish to point this out to them.

    Comment


      #17
      Originally posted by jpkeates View Post
      Because the initial tenancy ended (technically, and rather beautifullly because of "the effluxion of time"), there is no need for you to give notice to end it. It simply ends on its own.

      There have been lots and lots of cases where this happens and there isn't anything the landlord or agent can do about it.
      Yes, the tenancy ends, but what about the contract?

      The contract says that it will continue beyond the fixed term unless notice is served to prevent that.
      Shelter seem to believe that if the contract says T must give notice, then LL has a case if T does not.(https://england.shelter.org.uk/housi...d_term_tenancy), but they too seem to be conflating "tenancy" and "contract".

      Do those cases include contracts with a notice clause?

      Comment


        #18
        Originally posted by MdeB View Post
        Yes, the tenancy ends, but what about the contract?
        It would depend on the wording, but generally speaking the tenancy agreement documents the terms of the tenancy and doesn't have an existance separate to it.
        It's not helpful that in England, land law and contract law operate slightly differently, but the idea (for example) that the contractual agreement to pay rent has an existence independent and parallel to the land law notion of rent is particularly problematic.

        In this case it's probably academic.
        "If, on coming to the end of the fixed term agreed above, the landlord does not seek possession and the Tenant remains in the property, they will be considered by virtue of the Section 5 of Housing Act 1998, to have a statutory periodic tenancy and this will continue until ended by either party. "
        As the two necessary conditions were not met, the contract's attempt to restate the legal position (which is wrong) mean that even in this agreement, the tenancy would come to an end at the end of the fixed term.

        "If the Tenant or Landlord intends to terminate the Agreement at the end of the fixed term, or at any later date, the Tenant agrees to give the landlord at least one month’s prior Notice in writing and the Landlord agrees to give the Tenant at least two months prior notice in writing." Neither the landlord or tenant needs to intend for the agreement to end at the end of the fixed term, it simply happens.

        For the tenant to have breached this clause the landlord would have to rely on the tenant's notice to prove intent, while simultaneously claiming not to have received it.

        That term is so badly constructed, it's hard to rely on it at all. On the face of it, if the tenant intends to leave both they and the landlord have to give notice to each other

        Worst case, ​​​​​​​let's say the contract doesn't end, in which case the tenant might be in breach of some of the contract terms (possibly a lot of them).
        The landlord would have the right to compensation for any loss arising as a consequence, which is zero.
        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment


          #19
          Originally posted by cherrie View Post
          My former landlord and letting agent are trying to withheld my deposit. (England 12month AST).
          They are trying to claim I caused damage to the carpets and walls but this damage actually belongs to the second flat in the same building and was caused by the previous tenant of that flat who left the flat 4 months ago.


          I took photos (have exif data) before I left the property that shows it was in a good, clean condition is this enough? The flats layout and decor are identical.
          You appear to be saying that there are two identical flats in the building and that they do not share any common facilities.

          You further appear to be saying that the other flat was vacated 4 months ago and left in a poor state, AND that the Agent is using photos of that flat to claim money from you.


          Could you tell us:
          1. How you know that the flats are identical?
          2. How you know that the other flat was left in a poor state?
          3. Are there no distinguishing features of the flats (e.g. mirror image; views from windows)

          I knew the deposit ID but the website still wouldn’t show the deposit as being held. Only when I phoned DPS and gave them the ID did they confirm they were holding it but I still can’t use the details to log into the DPS website. Is this a DPS error or something relating to the landlord?
          You need to phone them again, explain that you cannot access your deposit information on-line, and insist that they sort it out whilst you are on the phone.
          If necessary, insist on speaking to someone more-senior until you get access.

          Also ask them when the deposit was protected.

          Should I win a claim through DPS (providing I can actually log in)?
          If all is as you say, then you should be OK.

          Failing that because they didn’t provide all the correct documents on time would court be an option?
          I really just want the actual deposit I paid returned.
          Court is an option if you believe LL/agent have unlawfully withheld your money.
          There are two things you could consider:
          1. the return of your money.
          2. penalty for non-compliance with deposit protection law.
          For non-compliance, the failure to provide the DPS Ts & Cs may be difficult for you to prove (LL/Agent will claim they did and you have forgotten).
          But here are 2 other possibilities for this:
          • If DPS records show deposit was protected more than 30 days after receipt, then you have a case.
          • Did the LL/gent provide you with the opportunity to check and sign the document containing the prescribed information, and provide you with a certificate signed by the LL/agent stating that they believe the PI to be correct and had given you the opportunity to check and sign the document?
          If they have failed in either of these, then pointing it out to agent may persuade them to return your deposit.

          Comment


            #20
            Thank you for all your help.

            The prescribed information was signed by myself and the letting agent at the same time the tenancy agreement was signed and the keys were handed over. I wasn’t actually given a chance to read the prescribed information before I signed it. The prescribed information is a few pages long, there is one clause in it that says if I don’t receive proof the deposit has been protected within 30 days to seek independent legal advice.

            I’m going to dedicate Tuesday to getting the deposit issue sorted.
            First with DPS, I still can’t log in online. I’ve checked my email inbox and the only emails I have from them are regarding a previous tenancy of mine. Are emails automatically sent by them? The letting agent has my correct email address as it is printed in the tenancy agreement. Also never received anything by post.
            The letting agent. If I contact them saying I’ve sought legal advice, I know they have no claim to the 13 months rent and as they failed to provide proof/receipt the deposit was protected within the time frame I do have a right to claim for the penalty in court but will settle for the amount I paid a good idea? Or could this horrendously back fire?
            Again not seeking any penalty but with moving outside the UK soon I am hoping to have this wound up before I leave. If it goes through the DPS then I have to take court action I guess I will be stuffed if I no longer reside in the UK?

            Regarding the other flat; I didn’t want to make my initial post too long but the building itself was once a two-story house that has been converted into two flats. I assume that the same person owns both flats as I found the sale and planning data online and no sales have happened since the conversion. When the other flat was put back up for rent I also found the advert online and it had photographs including the floor plan, the only difference between the two flats is a small area in the hall and the location of the front door but I think this could easily be hidden in photographs.
            It seems the previous tenant never took the bins out and the rubbish/bags were stacked up inside the flat. I lived in the upstairs flat when leaving the property I had to talk past the downstairs flats front door. When the tenant left the landlord/agent hired a professional cleaning company who wedged the front door to the flat open and I could see in, so when the letting agent emailed me the pictures I immediately knew where they were from. I suppose the view out of the window would be different but pictures the letting agent sent were of the carpet and skirting boards.

            Comment


              #21
              While it's common to give the Prescribed Information to the tenant with the Tenancy Agreement it can backfire if the deposit isn't actually protected at that point, because the Prescribed Information is technically not correct.

              It will be almost impossible to take legal action from outside the UK (unless you come back when required).

              I would suggest dealing with the two issues separately.
              Ask the letting agent for details of the deposit because you can't find any evidence that it was protected. They can be sued for that as well as the landlord, so it should focus their minds a little.
              So suggest that you might have to sue them for the penalty (they may claim that you have to sue the landlord, but they're wrong, you can sue whoever you paid it to - which would have been them.
              The DPS does send emails, but that requires the agent (or landlord) to enter them correctly and it's easy to get wrong (done it myself).
              But you can put the onus on the agent to get you the information - don't tell them you're going abroad, though, as that might encourage them to try and delay things.


              There's a reasonable chance that the deposit wasn't protected and if it wasn't, I'd suspect that they'll fall over themselves to get it back.

              If the landlord is trying to make a claim against the deposit or you for damage using a photograph of a different property, that's probably fraud.
              Once you know where you are with the deposit, suggest that the agent checks their records to see if the photo was used to make a claim against the other tenant, otherwise they're supporting the landlord's crooked activity.

              Your chances of getting anyone to do anything about the attempts, other than paying a solicitor to write and tell them to stop it as very small.
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment

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