Is the AST legal

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    Is the AST legal

    We are having trouble getting a deposit back from a landlord for various reasons.Notice was sent 6 wks before the tenancy ended but we did not find out until 8 days after my husband moved out of the premises that it was never received This notice was not sent by recorded delivery but the letting agents were aware that my husband was vacating the premises because it was verbally discussed in passing when I used to drop the landlords post into the letting office . The original shorthold tenacy agreement for 6 mths did not have the address of the landlord or the letting agency on it, in fact the only address on it is the address of the property. Six mths rent was paid in advance to the letting agency and the 7th mth was paid when an addendum shorthold was signed (this was drawn up on the letting agents headed note paper) - this was signed by my husband only. We have been told that under Section 48 of the L & T Act 1987 no rent was in fact due because no address was on the tenancy for the payment of rent. My husband moved into alternative accomodation for 2 wks when he moved out and would have liked to have had the opportunity of remaining in the flat (which he was in effect paying for) while he finished working in the area. What do you think our chances are of getting tthe deposit back thro' the courts?

    #2
    A number of the points you make are correct. However, the nature of your query is one that I would recommend be taken to your local CAB or perhaps a solicitor.

    For example the Section 48 point is correct. An address must be supplied under both Section 47 & 48, however, this does not necessarily need to be in the Tenancy Agreement.
    For the avoidance of doubt, I am not a solicitor nor a specialist. I have simply spent many years in the business and am expressing my opinions. I would urge caution to any individual using these forums as a sole basis for decision without first speaking to a solicitor.

    Comment


      #3
      Originally posted by mjpl
      A number of the points you make are correct. However, the nature of your query is one that I would recommend be taken to your local CAB or perhaps a solicitor.

      For example the Section 48 point is correct. An address must be supplied under both Section 47 & 48, however, this does not necessarily need to be in the Tenancy Agreement.
      There is some confusion with the law here.You are correct in saying that S47&48 are applicable but you should also look at S1-3 of the Landlord and Tenant Act 1985.If anything the agreement should state who the landlord or letting agent is on the front of the tenancy.
      Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

      Comment


        #4
        Originally posted by pms
        There is some confusion with the law here.
        Yes but its your confusion.

        People are having to spend more time & energy correcting you than answering questions.

        Comment


          #5
          Originally posted by Energise
          Yes but its your confusion.

          People are having to spend more time & energy correcting you than answering questions.
          Sorry Energise but I could say that works both ways and there's no confusion on my part I know how the law stands.There seems to be a stink of "sour grapes " at the moment and its certaintly not coming from my side.
          Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

          Comment


            #6
            When you say that no rent was due because of S48 (No address in the UK on which to serve notices) - yes, that is correct as long as that state persists - as soon as an address is notified, then all the back rent becomes legally due. The obligation is to by notice furnish an address - it does not say that the notice has to be in writing but the usual places are on the tenancy agreement or rent book or a letter giving the information.

            I find it strange that epb knew where the letting agency is: quote "This notice was not sent by recorded delivery but the letting agents were aware that my husband was vacating the premises because it was verbally discussed in passing when I used to drop the landlords post into the letting office" So there was an address available and the tenants were aware of it - so how come the notice was not dropped off at the same time when dropping the landlords post off - or was no check made "You did get that notice I sent on xx date?????" The very fact that you sent a letter presumably to the letting agent is evidence that you did indeed have and were aware of an address to which to send any correspondence, so therefore you cannot say you did not have notice under S48.

            A tenant who merely and simply posts a letter first or second class without any receipting at the other end runs the risk of it getting lost in the mail or at the office of receipt and if your landlord truly did not receive the notice that you were leaving, I do not think you will be getting your deposit back barring any excess over the amount due for the period you thought was notice.

            That is my understanding.

            Comment


              #7
              Originally posted by pms
              Sorry Energise but I could say that works both ways and there's no confusion on my part I know how the law stands.There seems to be a stink of "sour grapes " at the moment and its certaintly not coming from my side.
              Then you will of course be able to point me towards the relevant part of the Landlord and Tenant Act 1985 that you mentioned here is a link to the act to make it easier for you.


              http://www.letlink.co.uk/GeneralInfo/Stat3LT1985.htm
              Last edited by Energise; 04-04-2006, 09:34 AM.

              Comment


                #8
                [QUOTE=epb]We are having trouble getting a deposit back from a landlord for various reasons.[QUOTE]

                Well what are they ? I understand you have doubts about the whole tenancy but can you provide the relevant information please ? Why is the deposit being withheld, by whom and how much of it ?

                Zoe

                Comment


                  #9
                  Write to the agent saying if you don't get it back within 7 days without reasonable explanation you will issue proceedings through the small claims court without further notice. At least it will sort it out once and for all!

                  No S.48 Notice served on a tenant means that any S.21 Notice is invalid.
                  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
                    Many thanks for all the replies - apologies for not being able to get back to this post earlier.
                    Firstly we did get the advice from a solicitor (not in writing) about the Section 48 of the L & T and paid dearly for it but since then I have read many posts on different forums and am questioning this advice. We were aware from the start where the letting agency was but there was never a rent book or need for one because the whole six months was paid in advance. All receipts were on letting agency headed note paper but the lease was just on plain paper.
                    I did not unfortunately deliver the notice of terminating the tenancy by hand because I only used to visit mthly and was not in the area when we decided to give the letting agents as much notice as possible. Verbally they were aware anyway. The letting agent did call my husband 2 weeks before he moved out to see if he wanted to stay a further month; we considered it a courtesy call because they were trying to relet the flat for a further 3 mths before selling it, had they said then that they had no notice to quit then he would have given them further notice and had use of the flat for the two weeks he was in the area for. The landlord was aware then that the letting agency had apparently not received notice and was we understood annoyed but happy to let it slide (the property went on the market 2 wks after my husband moved out - a different firm is handling the sale). The day he moved out I was there to go through the itinery, meter readings etc and I was assured by the letting agent that the deposit would be paid back in full in 3 days. Eight days later we found out that all was not well because missing notice to quit. – surely we should have been told before this. The amount being retained by the landlord is £870 being 6 weeks rent. My husband was a model tenant, complained about nothing and left the place in a very clean & tidy state.
                    I have just noticed that ‘Zoe’ wanted to know the other reasons for retaining the deposit, which are:
                    A screw needed to be replaced in the curtain track
                    Paint peeling off the threshold inside the back door, dishwasher needed descaling.
                    Carpet cleaning - would be prepared to pay for this if receipt/estimate produced for both before and after let. Once again all marks on the carpet were listed in the letter at the begiing of the let. Landlord now claims carpet cleaned prior to let but this is rubbish because I manually cleaned some of the worst marks off the carpet at the beginning of the let.
                    Washing machine cleaning - it was pointed out in writing at the begining of the let (undisputed)that we could not open the door to use the machine - no manual supplied - machine never used.
                    There was a power failure during my husbands tenancy; with the landlords permission via the letting agency my husband arranged for qualified electricians from the site he was managing to come along and investigate the problem which took a few hrs and involved replacing an mcb (the old part was left for the landlord to see) all this at no cost to the landlord (at the time) Landlord is now withholding £50 to have the wiring tested Consequently have added on £130 for estimated cost of electrical work making the claim £1000.
                    We have been offered a settlement of £85.50
                    Sent court warning letters to all addresses we have about 3 weeks ago by R.D., also emails (1 RD has been lost by the Post Office). Have delivered the N1 etc to the County Court will let you no the outcome. Once again thanks for all your help & advice.

                    Comment


                      #11
                      I hadnt realsied that the notice lost was yours to the agent.

                      A couple of points.

                      1) If you were leaving at the end of the fixed term you do not have to provide notice.
                      2) The LL has to prove loss for all deductions from the deposit. If he is claiming rental loss then he has to prove it and further to that he has to try to reduce his loss my reletting the property etc.

                      Your only real choice here it to try and put your argument forward to the agent and LL in writting and if all fails then to go to court.

                      Zoe

                      Comment


                        #12
                        The notice was to the agent because rent was paid to the agent and there was no other address to send any correspondence to other than that of the agent.

                        I have put all the arguments in writing to the landlord and copies to the letting agency and am quite happy to argue away the matters relating to the carpet, dishwasher etc. It is just the retaining of the 4 wks rent that is a problem because of the written notice to quit going missing and the fact that nobody including the letting agency was aware that it was a problem until 8 days after my husband had moved out. Denying him the opportunity of remaining in the flat for a futher two weeks. My husband finished the job he was doing 2 weeks after he moved out and went into a hotel which worked out cheaper than renting for the whole month.

                        I was very interested to read your comment " The LL has to prove loss for all deductions from the deposit. If he is claiming rental loss then he has to prove it and further to that he has to try to reduce his loss my reletting the property etc." The property was removed from the letting agents hands (who are also estate agents) and put on the property market with another firm of estate agents 14 days after my husband vacated the flat.

                        Thanks for this advice

                        Comment

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