Deposit admin deductions.

[MrJohnnyB]

The court has to base this on the balance of probabilities. Obviously she has stated that she was not going to persue these charges, you say she said she had no intention of charging you a renewal. The facts are: - She has never charged you these fees, she has confirmed in an email that she had no intention of charging you these fees until she found out she could not withold your deposit for damage which was not caused. It all looks a bit dubious.

Just becuase a clause is placed within an agreement, if there is no actual expectation of a party to enforce it, does it not effectively become a sham or something?

[Lawcruncher]

What exactly does the relevant clause in the agreement say?

[ukcarmo]

the clause states; "The cost of preparing this agreement and its counterpart in th eusm of £150 plus VAT shall be borne by the Landord. Renewals of the contract shall be borne equally by the landlord and tenant"

the VAt bit is interesting as I am fairly certain she is not VAT registered.

ryan

[ukcarmo]

The court has to base this on the balance of probabilities. Obviously she has stated that she was not going to persue these charges, you say she said she had no intention of charging you a renewal. The facts are: - She has never charged you these fees, she has confirmed in an email that she had no intention of charging you these fees until she found out she could not withold your deposit for damage which was not caused. It all looks a bit dubious.

Just becuase a clause is placed within an agreement, if there is no actual expectation of a party to enforce it, does it not effectively become a sham or something?

can anyone add to this, my asumption would be the same, and that by allowing the contract to cease withoutever inforcing the clause suggests that the clause is in itself, redundant.

ryan

[ukcarmo]

Cany anyone expand on this ?

Thnk you in advance

[Lawcruncher]

I see the position generally like this:

1. An agreement ("Agreement 1") contains a clause ("the Clause") requiring the tenant to pay for any new agreement ("Agreement 2") that follows Agreement 1.

2. Agreement 2 (which also contains the Clause) is completed without any mention of costs.

3. Immediately Agreement 2 is completed Agreement 1 becomes a dead letter and accordingly the Clause contained in Agreement 1 is no longer of effect.

4. The Clause contained in Agreement 2 is of no use as it refers to any agreement which follows Agreement 2 and not to Agreement 2.

5. The tenant cannot be made to pay for Agreement 2.

It follows from the above that it is impossible to provide in an agreement for the tenant to pay the costs of any new agreement. The question of who pays for a new agreement has to be the subject of negotiation when the terms of the new agreement are being discussed.

It is certainly the case that if no agreement is made no costs are payable.

Whatever the position, if the landlord waived any costs she was entitled to then she waived them. The fact that she declined anyway to demand them when they would have been due confirms the waiver. Finally, she would in any event need to show that she had actually incurred costs.

[westminster]

I have a difficulty with point 3, that A1 becomes a 'dead letter' when A2 is completed. Rent due under A1 would remain payable if unpaid, surely, (whether demanded or not), so are you saying that LL is estopped from demanding the fees, having allegedly waived them (either expressly or implicitly)?

[Lawcruncher]

I have a difficulty with point 3, that A1 becomes a 'dead letter' when A2 is completed. Rent due under A1 would remain payable if unpaid, surely, (whether demanded or not), so are you saying that LL is estopped from demanding the fees, having allegedly waived them (either expressly or implicitly)?

Where a new tenancy is granted to the same tenant who was a tenant under the old tenancy the old tenancy is extinguished together with the parties' obligations under it. Whether that principle extends to unpaid rent is a question I have never considered and which I cannot answer with any confidence. In the case of a surrender the practice is to ensure that any outstanding rent is paid first or a declaration made to the effect that it remains owing. In practice would a sensible landlord grant a new tenancy where rent is outstanding?

[westminster]

Where a new tenancy is granted to the same tenant who was a tenant under the old tenancy the old tenancy is extinguished together with the parties' obligations under it. Whether that principle extends to unpaid rent is a question I have never considered and which I cannot answer with any confidence. In the case of a surrender the practice is to ensure that any outstanding rent is paid first or a declaration made to the effect that it remains owing. In practice would a sensible landlord grant a new tenancy where rent is outstanding?

Probably not, but what about periodic tenancies? A SPT is effectively a replacement tenancy, is it not? And any unpaid rent in respect of the expired fixed term contract would remain payable (AFAIK).

[Lawcruncher]

Probably not, but what about periodic tenancies? A SPT is effectively a replacement tenancy, is it not? And any unpaid rent in respect of the expired fixed term contract would remain payable (AFAIK).

I knew you were going to ask that!

[westminster]

I knew you were going to ask that!

Well, you'll agree, I think, that it cannot be the case that a T could sign a contract/move in, not pay the rent, and wait for fixed term expiry, whereupon the periodic tenancy which arose magically removed the liability for the unpaid rent.

It seems to me that s.5 HA1988 makes it clear that a periodic tenancy which arises by virtue of that section is a replacement tenancy. It arises when the fixed term tenancy 'comes to an end' (s.5(2)) and does not arise if the LL grants 'another tenancy' (s.5(4)).

S.5(3) spells out the terms of the statutory periodic tenancy; the terms of 'another' tenancy would be those independently agreed by LL/T. So, what's the difference?

The other thought I had is that rent is a debt; and I don't see how renewing a contract would cancel out a debt under a previous contract. The fee for contract renewal under discussion in this thread could, however, be a different kettle of fish.

[Lawcruncher]

I think I have the answer now. I had confused myself because I had not stated the position with sufficient exactitude. It is not quite the case that when a tenancy ends the obligations are extinguished, but that they are extinguished except to the extent that there was a breach subsisting immediately before the tenancy ended.

It still means that what I said in post 21 is correct subject to a slight adjustment to clause 3. This is because immediately before the tenant signs Agreement 2 he is not in breach of the provision in Agreement 1 that requires him to pay the costs of Agreement 2. Once he has signed Agreement 2 it replaces Agreement 1 and since the costs provision in Agreement 1 was not breached it becomes a dead letter.

[westminster]

Why is the tenant not in breach of the provision if he has not paid for the cost of agreement 2 as the provision requires him to?

Is the cost only payable if it is demanded?