No tenancy granted- so can I reclaim deposit paid?

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • No tenancy granted- so can I reclaim deposit paid?

    ******,

    I regret to inform you that the holding fee you paid for 135 Richmond Road is non refundable as this property was kept off the market whilst collecting references, consequently losing any further potential tenants who wished to view this property.

    Works are already under way to put right and complete the property ready for the rental market. The inspector will then sign the property off ready for the 1st February or there abouts as previously agreed with ourselves and the landlord.

    If you still require ********** assistance in finding you a new home please do not hesitate to contact one of our negotiators.

    Kind regards

    ************




    I received this letter/email today, after being unimpressed with the agency and house that we put a holding fee down on we opted out of the deal. We had an buildings inspector look at the place and say it was not being built to a good standard; stairs not within building regulations, flooring not well laid, etc.

    No contract was signed.

    Can they take our fees completely?
    Is there any possible way to get it all back?

    Regards
    Wayne

  • #2
    It is not possible to give a definitive answer without knowing the precise terms on which the holding deposit was paid. The fact that there was no formal written contract does not mean there was no contract. However, if there was no contract then the deposit is refundable. It takes two to tango for there to be a contract. Subject to exceptions that are unlikely to apply in your case, there can be no contract if the obligation to take a tenancy is not balanced by an obligation to grant a tenancy.

    Comment


    • #3
      In other words, when you paid the holding deposit, did you and the agent sign a document, and if so, what did that document say?
      Mrs Jones
      I am not an expert - my posts are my opinion and should not be taken as fact!!

      Comment


      • #4
        As others will undoubtedly correct me but my 2 cents none the less... Surely by paying a fee to an agent which is effectively a holding fee you are entering into a assumed contract with implied terms?
        [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

        Comment


        • #5
          What terms are you implying?

          Comment


          • #6
            Well being fairly inexperienced in truth I cannot give you a definative answer, although if i recall correctly there was a similar case recently and will see if I can find info whereby by paying a holding fee and the agents undertaking their portion of the agreement by removing the property from the market that it was simply an implied agreement. That said I suppose this simply relates more so to the sale of goods and fit for purpose rather than the actual holding fee agreement itself.

            Sorry if I'm wrong, just giving my interpretation of some of the things I have learnt, as I say I'm fairly inexperienced when it comes to practical situations!
            [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

            Comment


            • #7
              OK let's look at it a different way: You viewed a property that was not quite completed but liked what you saw and, subject to completion by an agreed date, agreed to rent the property. Landlord's agent therefore requested a holding deposit that you paid. The terms of this would have been something like, if you fail your credit/reference checks, you get your deposit back, if you do not continue to sign a tenancy agreement, your deposit is forefit.
              Now, subsequent to viewing, accepting the property and paying your deposit, you get a report from an independent inspector which states that the property you have inspected and accepted does not meet building regulations requirements. As a result you no longer want to rent it. O.K. You should have obtained this report before accepting the property yourself as acceptable and paying the deposit.
              Despite the building failing building regulations requirements and that the landlord may be required by the L.A. to rectify the situation, the fact remains that you accepted the property for rental and are now withdrawing your offer, thus, the landlord's agent does have a valid point in refusing to refund your holding deposit.
              Unfortunately the scenario is the same as a purchaser signing a contract to buy a house and then receiving a surveyor's report stating that the property is unsuitable for purchase.

              P.P.
              Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

              Comment


              • #8
                Originally posted by P.Pilcher View Post
                Unfortunately the scenario is the same as a purchaser signing a contract to buy a house and then receiving a surveyor's report stating that the property is unsuitable for purchase.
                I do not agree. The payment of a holding deposit either does or does not create a contract.

                1. If it does, what possible contract-before-a-contract could exist?

                2. If it does not, it's similar to a holding deposit traditionally received by a vendor's Estate Agent "as a token of good faith" (as if!) on a non-contractual basis, eventually either:
                a. to be set-off against a 10% contract deposit, if contracts are exchanged; or
                b. to be returned to P, if the purchase does not proceed.

                A 'holding deposit' paid to L's Letting Agent (A)- or even to L- is much more like case 2 than a deposit on exchange of contracts (as P.Pilcher suggests). If A or L wants to be able to keep it, to deter timewasters or to cover abortive work if prospective T fails the financial check, surely a clearly-worded preliminary Agreement is needed?
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                • #9
                  Originally posted by P.Pilcher View Post
                  OK let's look at it a different way: You viewed a property that was not quite completed but liked what you saw and, subject to completion by an agreed date, agreed to rent the property. Landlord's agent therefore requested a holding deposit that you paid. The terms of this would have been something like, if you fail your credit/reference checks, you get your deposit back, if you do not continue to sign a tenancy agreement, your deposit is forefit (sic).
                  P.P.
                  I think by using the word 'forfeit' then you are penalising the applicant and is therefore in potential breach of the UTCCR 1999 guidelines which might attract the attention of the TSO locally; as I have said before reasonable expenses is alright providing the applicant knows about this before parting with any money. I understand perfectly the Landlord's/Agent's position though.

                  By the way you cannot pay "fees" to an agent if you are the prospective tenant, they are "charges", as there is no 'contract' between agent and applicant to let the property. As Lawcruncher says, it all depends on other factors.
                  The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                  Comment


                  • #10
                    The property was listed as "under offer" once we had put down a holding fee.

                    No contract was available or mentioned in any sense, to do with paying the holding fee.

                    No signing of anything took place on our part, no signatures and no agreements were made. Only the holding of the property (which wasn't even ready to be put on the market at all, in regards to what the inspector told us).

                    Prior to handing over any money for the holding fee, we asked the agent;
                    if we needed to pull out before any more money was handed over (any deposits or fees ..etc) would we be refunded on any or all of the holding fee.
                    He told us yes, but only half.
                    However, now we have expressed our decision not to continue in renting the property, he has passed us over to another person on his team or in the office to deal with us and tell us that there will be a 0% refund. Nothing.
                    Their reasons were simply because the house was taken "off the market" and they used the money we paid for the holding fee, to get our references checked.

                    These so called "references" are non existant, because we never gave any information about any.


                    In any case, if there was an "assumed agreement", surely its only right if both parties know? Else is it really valid? I reiterate - we signed nothing and saw no such contract.

                    Comment


                    • #11
                      Are you saying that you handed over a sum of money without getting in writing anything saying what the money was for or even that you had handed over any money to them at all? Did you get a receipt?

                      I assume youre only asking for 50% of the deposit back as you say thats what you agreed orally with them? If you have some way of showing that this was what was agreed (a witness?) then you shouldn't have a problem getting the 50% back if it went to Court.

                      Comment


                      • #12
                        Originally posted by 120 View Post
                        The property was listed as "under offer" once we had put down a holding fee.

                        No contract was available or mentioned in any sense, to do with paying the holding fee.

                        No signing of anything took place on our part, no signatures and no agreements were made. Only the holding of the property (which wasn't even ready to be put on the market at all, in regards to what the inspector told us).

                        Prior to handing over any money for the holding fee, we asked the agent;
                        if we needed to pull out before any more money was handed over (any deposits or fees ..etc) would we be refunded on any or all of the holding fee.
                        He told us yes, but only half.
                        However, now we have expressed our decision not to continue in renting the property, he has passed us over to another person on his team or in the office to deal with us and tell us that there will be a 0% refund. Nothing.
                        Their reasons were simply because the house was taken "off the market" and they used the money we paid for the holding fee, to get our references checked.

                        These so called "references" are non existant, because we never gave any information about any.


                        In any case, if there was an "assumed agreement", surely its only right if both parties know? Else is it really valid? I reiterate - we signed nothing and saw no such contract.
                        This all bears-out my post #9. 'No such contract' should entitle T to recoup the holding deposit.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                        • #13
                          This is interesting - when I worked in a Lettings Agency a holding deposit (portion that would be taken from 1st month's rent) was taken as forfeit if the tenant then decided to not move in.
                          Of course, we got the tenants to sign paperwork to this effect, but would that stand up in court?

                          Comment


                          • #14
                            Originally posted by Tess View Post
                            This is interesting - when I worked in a Lettings Agency a holding deposit (portion that would be taken from 1st month's rent) was taken as forfeit if the tenant then decided to not move in.
                            Of course, we got the tenants to sign paperwork to this effect, but would that stand up in court?
                            See post #9. It all depends on exactly what the 'paperwork' constitutes- a preliminary contract or not?
                            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                            4. *- Contact info: click on my name (blue-highlight link).

                            Comment

                            Latest Activity

                            Collapse

                            • Tenant's energy debt.
                              Gordonmrln
                              I am a landlord of a 2 bed end terrace, the property is owned out right. I am registered Disabled and this was the main reason I decided to rent my property out. As it was not a suitable property for my Disability. I would have to make some major changes that would devalue my property like installing...
                              20-07-2017, 22:08 PM
                            • Reply to Tenant's energy debt.
                              Gordonmrln
                              Hi there, I was wondering if anyone can help me yet again, I've just got off the phone with the debt collecting agency and I am physically shaking, I was so angry and upset I just had to come and try get some help. As You are aware I had to send them some documentation regarding my late wife's death....
                              26-07-2017, 14:26 PM
                            • Wanting/needing to leave early
                              geologist
                              I am in England and currently on a periodic tenancy 5+ years. This week I should have confirmation that I have a new AST in another country one the landlord provides a good enough reference (which they should do....I have been a great tenant). The landlord knows I am wanting to move as he, earlier this...
                              26-07-2017, 08:36 AM
                            • Reply to Wanting/needing to leave early
                              mk1fan
                              OP, I can see you point but that doesn't give you any entitlement.

                              Renting is a funny circumstance as it is the occupier's home but the owner's business asset.

                              You say you are relocating. Would you relocate if your new employer said they would only make their mind up to employ...
                              26-07-2017, 14:18 PM
                            • Tips for making a good impression when meeting a landlord
                              purpleangel
                              Our potential new landlady has 'approved us in principle' but wants to meet us at the house as the final part in the referencing process. Beside the obvious such as look smart, tidy and professional and warn the kids to behave, any particular tips for making sure this last hurdle goes smoothly?
                              26-07-2017, 10:11 AM
                            • Reply to Tips for making a good impression when meeting a landlord
                              Wannadonnadoodah
                              I decided not to let to a family based on the car they turned up in. Had made my decision before they had even turned the engine off....
                              26-07-2017, 14:12 PM
                            • Reply to Wanting/needing to leave early
                              jpkeates
                              The contract term is there for a reason - to allow access to override the general principle of quiet enjoyment.
                              It's not a question of priority (although it would be more helpful if the terms of access were clearer - or not, lots of contracts consent to viewings in the last month of the tenancy,...
                              26-07-2017, 14:09 PM
                            • Mice in the flat - what to do?
                              JP23
                              We have had mice for a while now. There's only one or two that we see (we're not overrun) but still, they've left urine stains in our cupboard and behind the skirting it's ridiculously filthy and soiled.

                              Are we legally able to pay for a cleaner then subtract it from our rent next month...
                              26-07-2017, 06:02 AM
                            • Reply to Mice in the flat - what to do?
                              jpkeates
                              That isn't an actual law - it's Shelter's view of the duties of a landlord.
                              It isn't as black and white as that - life would be simpler if it was.

                              Your view that there have been mice in the property before isn't any evidence that they were there when you moved in.
                              If the neighbours...
                              26-07-2017, 14:04 PM
                            • Reply to Mice in the flat - what to do?
                              JP23
                              This is the most helpful response, thank you....
                              26-07-2017, 13:51 PM
                            Working...
                            X