Right of LL to hold back Deposit ?

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    Right of LL to hold back Deposit ?

    My AST deposit clause states " If a deposit is paid it shall be retained by the LL or the LL's agent as security for performance of the tenants obligations and shall be repayable to the tenant only after the end of the tenancy and then without interest and after deduction therefrom of any sum required to compensate the LL whether wholly or in part for any breach of obligation on the Tenants part".

    I've read on some posts on here that the LL cannot hold back any deposit against arrears unless it is stipulated in the AST.

    As the above Clause does not specifically mention arrears, can the LL rightfully hold back the deposit against arrears, (if any).
    Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

    #2
    Would you not consider failure to pay the rent to be a fairly fundamental "breach of obligation on the Tenants part"?!?

    Comment


      #3
      I was going to say just that

      Comment


        #4
        As someone who is relatively new to Tenancy Agreements I was just trying to get my head round an otherwise ludicrous piece of paper loosely called an AST, which also purports to give the Landlord right of entry and repossession without a Court Order if he can't contact me for 21 days or would you say that I would be in breach of contract if I went on holiday for 3 weeks?

        Perhaps the more experienced members could have a little more patience with new members if they seem to ask questions that more experienced members would know but new members may be struggling to understand, instead of giving somewhat patronising and sometimes tetchy answers??




        Originally posted by Ericthelobster
        Would you not consider failure to pay the rent to be a fairly fundamental "breach of obligation on the Tenants part"?!?
        Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

        Comment


          #5
          Well sorry if I caused offence - none intended - but if you genuinely took umbrage at that, all I can say is you're lucky Paul_F didn't respond!

          Comment


            #6
            Tend to agree with Eric and Jennifer.

            You also posted this question in No guarantor form - is guarantor liable

            I have answered more fully in that thread.
            Vic - wicked landlord
            Any advice or suggestions given in my posts are intended for guidance only and not a substitute for completing full searches on this forum, having regard to the advice of others, or seeking appropriate professional opinion.
            Without Plain English Codes of Practice and easy to complete Prescribed Forms the current law is too complex and is thus neither fair to good tenants nor good landlords.

            Comment


              #7
              Originally posted by pippay
              As someone who is relatively new to Tenancy Agreements I was just trying to get my head round an otherwise ludicrous piece of paper loosely called an AST, which also purports to give the Landlord right of entry and repossession without a Court Order if he can't contact me for 21 days or would you say that I would be in breach of contract if I went on holiday for 3 weeks?

              Perhaps the more experienced members could have a little more patience with new members if they seem to ask questions that more experienced members would know but new members may be struggling to understand, instead of giving somewhat patronising and sometimes tetchy answers??
              Sorry but this has nothing to do with being new to a forum: you are asking people if there is a way of getting out of losing your deposit if you are in arrears.
              No offence but if it was me it wouldn't feel very appropriate to try and get out of my responsibilities and then be unhappy when people on a forum point this out to you.

              Comment


                #8
                Please let me make myself clear - I wasn't actually objecting to the answer (I more or less expected it) - more the tone in which it was phrased which surprised, rather than upset, me. It seemed terse. I was merely asking for clarification, querying the meaning of just one clause of an already "iffy" tenancy agreement with clauses in it insinuating that a tenants legal rights (when it comes to rights of entry and repossession) have been negated by the mere inclusion of the offending clauses.

                As for "getting out" of anything, my LL has full prior knowledge of the possibiity of impending financial difficulty (i.e. not in arrears at the moment but maybe in a couple of months time) but it would seem he would prefer to see a tenant get into arrears (and himself significantly out of pocket) rather than issue an S21 because in his ignorance he believes that he needs a reason to issue one!!! In view of this ignorance, combined with the illegal clauses, I am rightly questionning anything else that is or could be seen to be ambiguous when read in the context of the entire document, as is my right. I am sure if the roles were reversed and you were a tenant in the same situation you would be doing exactly the same as I i.e. establishing exactly what rights you do have in this situation.

                P.S. He is also aware that I cannot give notice to quit as I would be deemed to have made myself intentionally homeless (I suffer from serious ill health and am trying to get the LA to take responsibility for rehousing me, should the need arise) AND that I am making application for other benefits from various Local Authority departments so that I can AVOID getting into arrears. Hardly the actions of someone who is trying to "get out" of their obligations and responsiilities under the terms of the tenancy.

                If I was bothered by your opinion, I would rather resent your assumption and accusation that I was deliberately trying to avoid my responsibilities. If a document a LL/his agents supplied turned out to be invalidated because of any unfair terms he/they put in it, then that LL/agent only has himself to blame if a tenant uses it to his own advantage !!

                Not all tenants have hidden agendas that are solely for the purpose of getting one over on their LL ! They ask questions because they need answers. As there aren't nearly as many "professional tenants" as there are professional LL's, when do they ask a question, they are looking for a reply from a LL's perspective and knowledge and for that reason alone there is no necessity for terseness, sarcasm or downright rudeness, come to that. Asking questions of LL's is actually complimenting them.

                Even amongst experienced member LL's, their answers to some questions can vary considerably, depending on their personal views, so it is quite possible that one clause can be interpreted in several different ways by several different people.

                So please bear this in mind when you read a question in future that you think SHOULD have an obvious answer - sometimes it's not that obvious to the poster - if it were, they wouldn't need to ask in the first place !!


                Originally posted by Jennifer_M
                Sorry but this has nothing to do with being new to a forum: you are asking people if there is a way of getting out of losing your deposit if you are in arrears.
                No offence but if it was me it wouldn't feel very appropriate to try and get out of my responsibilities and then be unhappy when people on a forum point this out to you.
                Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

                Comment


                  #9
                  In this thread Pippay asked a specific question.

                  Having supported Eric and Jennifer in their previous replies and reading Pippay's response I given second thoughts to whether or not I was right to come to this conclusion.

                  I would ask Pippay to bear in mind that the people who try to answer questions on these pages are volunteers and may not have read her other threads setting out a somewhat complex situation.

                  In a nutshell Pippay's landlord will not serve her with a Section 21 notice and she cannot voluntarily leave her property because she will be regarded as deliberately making herself homeless. She cannot afford the whole of the rent and as told the landlord so. Pippay has received some excellent advice from Shelter about potential homelessness arising from unaffordable rent.

                  None of us on this thread should be expected to know there are alleged unfair clauses on Pippay's AST - this does not mean to say that ALL AST's are 'ludicrous".

                  I wonder if Pippay will let us agree she is experiencing a very, very stressful situation at the moment and in these circumstances might have over reacted to what were intended as simple brief responses to a straightforward question
                  Vic - wicked landlord
                  Any advice or suggestions given in my posts are intended for guidance only and not a substitute for completing full searches on this forum, having regard to the advice of others, or seeking appropriate professional opinion.
                  Without Plain English Codes of Practice and easy to complete Prescribed Forms the current law is too complex and is thus neither fair to good tenants nor good landlords.

                  Comment


                    #10
                    Check out Unfair Terms in Tenancy Contracts

                    In relation to whether an AST is fair or not, it's worth checking out the guidance issued by the OFT on Unfair terms in Tenancy Agreements. You will find it on the OFT's website.
                    These -i.e. the OFT's - guidance notes are only valid once upheld in a court, but they tend to be followed by the courts.
                    Their notes are well worth reading.
                    I hope this helps.
                    Whilst I have not had time to look at all of this thread, its a fact that for any sensible landlord the deposit is a tool to recover unpaid rent (arrears) as much as anything else, and gven the the unduly long time that it takes the courts to evict for unpaid rent, for most landlords the deposit should be at least 6 weeks.
                    On a general basis, it's always best to talk to your landlord and try to work things out. Most sensible landlords are reasonable and it's much better than going to law.
                    That said a tenant must pay, and make every effort to pay the rent that is owed.
                    Hope it all works out.
                    David Lawrenson

                    Comment


                      #11
                      Unfair terms in TA's

                      Just to add to my previous post, I should add that just because a clause in a TA is unfair, it does not invaildate the whole agreement only that clause.
                      The original writer sounds like a reasonable tenant who wants to pay the rent.
                      In these circs I would advise them to tell the landlord what steps they are taking to get help with paying the rent - getting additional benefits etc - and keep them fully updated and appraised of the situation as it develops.
                      I'm sure that the landlord would rather work with you, than have to wait for a court evistion process to grind through.
                      That said, if the circs are that say, tht a tenant has been continually late paying, getting them out to change a light bulb -that kind of thing....then it could be that the landlord is just fed up with the hassle and wants to end the tenancy anyway - hence thats why the landlord is going down the eviction route.
                      David Lawrenson

                      Comment


                        #12
                        Yes I understand that but please see my replies to two specific points you made

                        Originally posted by David Lawrenson
                        In relation to whether an AST is fair or not, it's worth checking out the guidance issued by the OFT on Unfair terms in Tenancy Agreements. You will find it on the OFT's website. I have thoroughlychecked the OFT 'sGuidance Sept 96, as has Shelter, and this is what leads us to believe that with a fair degree of certainty, approx 75% of the clauses can be deemed as potentially unfair if not downright illegal.
                        These -i.e. the OFT's - guidance notes are only valid once upheld in a court, but they tend to be followed by the courts.
                        Their notes are well worth reading.
                        I hope this helps.
                        Whilst I have not had time to look at all of this thread, its a fact that for any sensible landlord the deposit is a tool to recover unpaid rent (arrears) as much as anything else, and gven the the unduly long time that it takes the courts to evict for unpaid rent, for most landlords the deposit should be at least 6 weeks.
                        On a general basis, it's always best to talk to your landlord and try to work things out. Most sensible landlords are reasonable and it's much better than going to law. I am already trying to establish a line of communication with the LL prior to any problems arising but the LL seems loathe to work with me to reach an amicable solution that would negate the necessity to go to Court i.e. issue a S21 before any debts are accrued which in my simplistic view would be more beneficial for HIM in the long term
                        That said a tenant must pay, and make every effort to pay the rent that is owed. Which is what I am trying to do
                        Hope it all works out.
                        David Lawrenson
                        Last edited by pippay; 10-06-2006, 09:44 AM.
                        Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

                        Comment


                          #13
                          Now I am totally confused .. according to a previous post by Paul_f and jennifer M if a deposit is held by the agent, and the status ( ie stakeholder or agent) is not defined in the AST, then it is automatically assumed to be held by the agent as stakeholder.

                          Assuming this to be correct, then the deposit cannot be used for anything unless the Tenant agrees - (am I understanding this correctly so far?)

                          So if my AST doesn't stipulate the status of how the deposit is being held, am I right in thinking that it's being held by the agent as stakeholder and therefore cannot arbitrarily be used against arrears unless I agree regardless of what the AST says?

                          If this is correct then the previous posts saying that the LL can automatically use the deposit against arrears is surely incorrect?

                          I am asking out of interest not merely to "get out " of my responsibilities ...
                          Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

                          Comment


                            #14
                            Your comments are noted, Wildlife - thanks again for your objective input

                            Originally posted by Worldlife
                            In this thread Pippay asked a specific question.

                            Having supported Eric and Jennifer in their previous replies and reading Pippay's response I given second thoughts to whether or not I was right to come to this conclusion.

                            I would ask Pippay to bear in mind that the people who try to answer questions on these pages are volunteers and may not have read her other threads setting out a somewhat complex situation.

                            In a nutshell Pippay's landlord will not serve her with a Section 21 notice and she cannot voluntarily leave her property because she will be regarded as deliberately making herself homeless. She cannot afford the whole of the rent and as told the landlord so. Pippay has received some excellent advice from Shelter about potential homelessness arising from unaffordable rent.

                            None of us on this thread should be expected to know there are alleged unfair clauses on Pippay's AST - this does not mean to say that ALL AST's are 'ludicrous". I wasn't for a moment suggesting that ALL AST's are ludicrous - just mine !! It seems to be archaic in its terms and certainly does not comply with OFT Guidance on Unfair Terms Sept 05 (P.S
                            I am aware that only a Court can ultimately decide if a term is unfair but having said that I also understand the Courts give great credence to the OFT Guidance and will usually agree with them! )


                            I wonder if Pippay will let us agree she is experiencing a very, very stressful situation at the moment and in these circumstances might have over reacted to what were intended as simple brief responses to a straightforward question
                            Any information or opinion given in this post is based only on my personal experience, what I have learned from this, other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person. E&OE

                            Comment


                              #15
                              Pippay, I have read your other threads and understand your situation, however regardless of how your deposit is held and what clauses are contained in the AST, you are responsible for paying the rent.

                              So even if the landlord isn't authorised to use your deposit to cover the rent he can sue you to recover his money and you will have to pay it one way or another.
                              If you are, as you said in another post, not trying to gte out of your responsibilities and want to pay your rent, why not accept for your deposit to be used against any arrears you may have built up?

                              Comment

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