AST - deposit "paid" and "received"

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    AST - deposit "paid" and "received"

    I am asking for help in this matter:
    1. Hand written AST created before 2007 and deposit paid.
    2. AST becomes stautory periodic tenancy, deposit subsisting.
    3. Hand written contract called "New Agreement"created in 2008 for 3 monts, rent increased but deposit stays the same. After expiry of 3 months letting continues further untill mid 2009. Rent paid monthly. Landlord enters and takes possession before the expiry of monthly paid for period.

    Deposit not secured in TDS.
    This raises questions:
    1. "New Agreement" - is it a contractual periodic tenancy? Can it be legal for three months?
    2. Is it a periodic AST? If so what about 6 month min. period?

    (I am asking these questions in case a judge will consider that the "New Agreement" was not AST but a mere continuation, via monthly periodic tenancy of the initial AST. He might say that it was only a 3 months extension and as such outside TDS consideration.)

    3. Pre 2007 deposit which remained for the purpose of the "new", post 2007 agreement - can it be classed as paid and received?

    There is a dispute about this. Apparently there is an appeal case in higher cour(s) but I don't know its identity which is expected to resolve this and become an authority.
    At the moment there are contradictory judgments on this issue.

    Can someone help with this please?

    #2
    Originally posted by brava View Post
    1. Hand written AST created before 2007 and deposit paid.
    Was this a tenancy in England/Wales, rent less than £2,083.33 pcm, non-resident landlord?

    1. "New Agreement" - is it a contractual periodic tenancy? Can it be legal for three months?
    2. Is it a periodic AST? If so what about 6 month min. period?
    Sounds like it may have been a renewal AST with a three month fixed term, in which case, not a periodic tenancy. There is no minimum term for an AST.

    3. Pre 2007 deposit which remained for the purpose of the "new", post 2007 agreement - can it be classed as paid and received?
    The statute is not crystal clear on this issue. It can be interpreted either way. Did the 'new agreement' include mention of a deposit? If so, it might strengthen your case (assuming your Q relates to bringing a claim for non-compliance with deposit protection).

    Apparently there is an appeal case in higher cour(s) but I don't know its identity which is expected to resolve this and become an authority.
    See http://blog.painsmith.co.uk/2010/04/...come-to-court/
    The rulings have not yet been published.

    If you are planning to bring a claim for non-compliance with deposit protection, see also
    http://blog.painsmith.co.uk/2009/05/...or-tds-claims/

    Landlord enters and takes possession before the expiry of monthly paid for period.
    With or without your agreement?

    Comment


      #3
      Thank you for your quick reply.
      1. Tenancy in London; Llrd non-resident.
      2. AST for 12 months entered in 2006: £950 rent, £950 deposit. It continued to 2008
      3. "New Agreement" for 3 months in 2008 on terms: rent paid monthly in advance £1000; deposit £950 subsisting.
      4. Llord entered and changed the locks and todate keeps tenant's belongings.
      5. the "New Agreement" specifies rent as £1000 and also states: "tenant pay £950 for renting the flat" (this expression meant deposit, however the landlord's literacy is obviously and consistantly poor)

      I understand that AST has a min. 6 mths period in accordance with s. 20(1)(a)(b) HA1988 (I can't see any changes brought by amendments in HA1996 nor 2004. If, as you say, and I agree, this is a replacement AST then it stands by its own right and should comply with s. 20. (Despite fixed term of 3 mths it went on until July 2009 when L-lord re-entered and changed the locks.
      On a preliminary hearing DJ expressed an opinion that the new agreement is just a periodic tenancy and deposit relates to the old tenancy. The case is adjourned with directions and I must prepare for an obvious onslought.

      The only case I found pertinent to these facts is: Bihari v House Trader LTD, 14 Jan 2010 Central London CC which succeeded on appeal before HHJ on grounds that "there was a post 2007 tenancy agreement stating that a deposit had been paid in respect of that tenancy." I fear though that that agreement was conclusively worded, albeit the deposit was also, like in my case, a subsisting one. (What a legal hypocricy!)

      The cases recently considered by higher courts were all on late compliance with TDS.
      If there are any cases pending on the issue of construction "paid and received" I shall be grateful for info about it.

      Thank you.











      If there is a similar case pending I would be grateful for info about it.

      Comment


        #4
        Originally posted by brava View Post
        4. Llord entered and changed the locks and todate keeps tenant's belongings.
        This sounds like illegal eviction. Did you report LL to the local authority private tenancies officer? Are you pursuing a civil claim for damages?

        I understand that AST has a min. 6 mths period in accordance with s. 20(1)(a)(b) HA1988 (I can't see any changes brought by amendments in HA1996 nor 2004.
        It was amended by HA1996. I'm not entirely sure, but I think the relevant section is s.19A HA1988 (inserted by s.96 HA1996) entitled 'Assured shorthold tenancies: post Housing Act 1996 tenancies'. See this link.


        The only case I found pertinent to these facts is: Bihari v House Trader LTD, 14 Jan 2010 Central London CC which succeeded on appeal before HHJ on grounds that "there was a post 2007 tenancy agreement stating that a deposit had been paid in respect of that tenancy." I fear though that that agreement was conclusively worded, albeit the deposit was also, like in my case, a subsisting one. (What a legal hypocricy!)
        As I said before, the statute itself is unclear on whether protection is indeed required when a pre-April 2007 tenancy is renewed post-April 2007. (And in view of the uncertainly, it's advisable for LLs to protect the deposit in this situation). So you'll have to convince the court that your interpretation is correct. See also
        http://blog.painsmith.co.uk/2009/04/22/tdp-again/
        http://nearlylegal.co.uk/blog/2010/0...tenancy-again/
        which refer to other county court cases.

        The cases recently considered by higher courts were all on late compliance with TDS.
        How do you know? As far as I am aware, the facts in Honeysuckle v Fletcher are not yet known, as it is a case sent straight to the appeal court.

        Comment

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