A number of questions.....

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    A number of questions.....

    Apologies firstly - I have looked around the forum and kind of got answers to most of these questions, but generally they are worded slightly differently and it's good to have everything in one place....

    1) Our AST commenced in 2006 for 12 months after which we got letters from the letting egency saying it would continue with all the same T&Cs etc but we have never signed a new contract. Does that fact, notwithstanding anything else, the we have not signed a brand new AST means that a) we are on a statutory periodic tenancy and therefore required to give 1 months notice rather than two and b) the deposit is not required to be protected under one of the April 2007 schemes?
    2) We have a clause in the AST that says along the lines of 'the tenant is not permitted to run a business from the property without prior consent from the LL...'. I was an IT contractor until recently so had to have a registered business address and I used the rented property. No footfall into the house etc, literally just a registered address. LL is claiming I broke tenancy contract because I didn't get her consent. This is true, hold my hands up on this; didn't read the T&Cs carefully enough. However, does LL have the right to take away deposit because of this? Can't see what financial loss she would have suffered?
    3) The security deposit has been held directly by the LL since we moved into the property nearly 6 years ago. Now we have moved out, the deposit is with the Letting Agency (still under dispute. My question is this - in those 6 years what should the LL have done with our deposit by Law? Held it in a seperate account? Can she claim the interest from it? Should that be ours? Provide annual statement to us etc?

    These three are things I have been trying to get a good answer on from all over the net and have failed thus far. Hope you can help!
    Cheers
    Scott

    #2
    1) Yes, you are on a SPT and no, if the tenancy has never been renewed then the tenancy is still outside of the deposit legislation although it would have been good practise for the LA to include it anyway but no foul if he doesn't.

    2) No. landlord can't take away your deposit for this or make any deductions from it unless she can prove that the registration of the business has caused her some loss; I can't think what loss it may have caused but if she wishes to claim she must confirm that. It probably best to reregister the business elsewhere anyway, perhaps your accountants if you have one.

    3) The landlord wasn't under any obligation to protect the deposit in a DPS if the tenancy was never renewed, or hold in in a specific way unless the tenancy agreement says different. The matter of interest should also be covered in the tenancy agreement, if not its probably yours, she can't just decide it hers without an agreement saying so.
    She doesn't need to provide an annual statement.

    Hope this helps.
    My advice is not based on formal legal training but experience gained in 20+ years in the letting industry.

    Comment


      #3
      I think the 'Localism' bill says otherwise, but I have not studied it yet so can;t be sure.
      I offer no guarantee that anything I say is correct. wysiwyg

      Comment


        #4
        Originally posted by scottlington View Post
        1) Our AST commenced in 2006 for 12 months after which we got letters from the letting egency saying it would continue with all the same T&Cs etc but we have never signed a new contract. Does that fact, notwithstanding anything else, the we have not signed a brand new AST means that a) we are on a statutory periodic tenancy and therefore required to give 1 months notice rather than two and b) the deposit is not required to be protected under one of the April 2007 schemes?
        Yes, you have a statutory periodic tenancy, and yes you must give one month's notice but your notice must also expire at the end of a tenancy period (so, depending on when you give notice, and the dates of the tenancy periods, the notice period may well be longer than a month).

        The law was recently amended, in April this year, and there is no absolute certainty on the latter point, (see http://blog.anthonygold.co.uk/2012/0...sions-warning/) but given the uncertainty it would be very risky to claim against the LL for non-compliance as such claims are not dealt with in the small claims track; court fees would exceed £1000, you would need a lawyer to argue your case for you, and you would be exposed to the LL's legal costs if you lost.

        2) We have a clause in the AST that says along the lines of 'the tenant is not permitted to run a business from the property without prior consent from the LL...'. I was an IT contractor until recently so had to have a registered business address and I used the rented property. No footfall into the house etc, literally just a registered address. LL is claiming I broke tenancy contract because I didn't get her consent. This is true, hold my hands up on this; didn't read the T&Cs carefully enough. However, does LL have the right to take away deposit because of this? Can't see what financial loss she would have suffered?
        No, the LL cannot retain the deposit on this ground unless your alleged breach has caused her a loss. And just using the address as a business address isn't necessarily a breach as you weren't actually running a business.

        3) The security deposit has been held directly by the LL since we moved into the property nearly 6 years ago. Now we have moved out, the deposit is with the Letting Agency (still under dispute. My question is this - in those 6 years what should the LL have done with our deposit by Law? Held it in a seperate account? Can she claim the interest from it? Should that be ours? Provide annual statement to us etc?
        What does your contract say about it? If nothing, then there's nothing to oblige the LL to hold the deposit in a separate account, or pay you interest, or provide an annual statement. Obligations post-April 2012 are arguable, as per my previous comments.

        The deposit is your money. If the LL retains it then claim against her for return of the deposit (such a claim would be allocated to small claims, so court fees are low and you can DIY it). She will have to counter-claim for her alleged losses, i.e. prove that she is suffered a loss and is therefore entitled to keep some or all of your money.

        Comment


          #5
          1) Depends on the wording of the AST agreement, a statutory periodic tenancy probably occurred, but it is possible that the agreement created a 'contractual periodic tenancy'.

          2) The registration of your business was a breach of the tenancy agreement, I know, I have been setting up a company this morning! However, as you say, there is no financial loss, therefore nothing for the landlord to claim.

          3) There is mixed opinion. If your tenancy ended before 6/4/2012 there was no need for protection. If after - the Localism Act 2012 suggests it should have been, but it is not clear and one that the senior court judges will have to sort out. Because the revisions to the law are new, there have been no 'test cases'. Whether he should or shouldn't have protected your deposit does not affect his ability to 'claim' against your deposit, and (unless you have £1000+ to spare for an uncertain non-compliance claim) wouldn't affect your ability to sue for the recovery of your deposit.

          Interest - if no interest is agreed, then no, you are not entitled to any. LL can do what he likes with the deposit - he can invest it in jelly beans if he likes! No need for statements.

          Comment


            #6
            Thanks all for the quick a full responses - most helpful!

            Just a couple of clarifications if I may.

            1) Re the AST, we had a number of letters during the almost 6 years we were at the property regarding renewing the tenancy etc, but the very last we got had the wording ' happy for the tenancy to continue on a rolling two monthly agreement.....under the same T&Cs as the original AST, incuding the obligation that each party can give two months written notice to termintae the agreement...'. Does this mean I still have to give two months notice or is this irrelevant in law?
            2) Re the deposit, this was held by the landlord but a clause in the contract specifically states that '...the landlord's agent shall not be liable to pay interest to the landlord or the tenant on the deposit referred to in clause 2.2....' I remain slightly confused here? Can anyone help decipher? In the interst of clarity I'm not trying to recover any interest, but to have this in hand should the LL continue to be unreasonable and not return our deposit.

            Thanks again for your replies and time; it's very very much appreciated!
            Scott
            Last edited by scottlington; 21-06-2012, 18:39 PM. Reason: spelling

            Comment


              #7
              Originally posted by scottlington View Post
              1) Re the AST, we had a number of letters during the almost 6 years we were at the property regarding renewing the tenancy etc, but the very last we got had the wording ' happy for the tenancy to continue on a rolling two monthly agreement.....under the same T&Cs as the original AST, incuding the obligation that each party can give two months written notice to termintae the agreement...'. Does this mean I still have to give two months notice or is this irrelevant in law?
              Did you reply to this letter saying that you agreed to the proposed terms? If not, then the terms do not apply.

              2) Re the deposit, this was held by the landlord but a clause in the contract specifically states that '...the landlord's agent shall not be liable to pay interest to the landlord or the tenant on the deposit referred to in clause 2.2....' I remain slightly confused here? Can anyone help decipher? In the interst of clarity I'm not trying to recover any interest, but to have this in hand should the LL continue to be unreasonable and not return our deposit.
              The quoted clause says that the agent is not is liable to pay you interest on the deposit. Unless there is another clause saying that the LL is liable to pay you interest, then the LL is not liable to pay you interest, either.

              Comment


                #8
                Originally posted by westminster View Post
                Did you reply to this letter saying that you agreed to the proposed terms? If not, then the terms do not apply.
                Yeh, we signed the letter and sent it back so I guess that binding then...

                Originally posted by westminster View Post
                The quoted clause says that the agent is not is liable to pay you interest on the deposit. Unless there is another clause saying that the LL is liable to pay you interest, then the LL is not liable to pay you interest, either.
                Thanks - again, just to be clear, I'm trying to figure if LL should not have benefited from any interest on deposit rather than get it for myself.

                Comment


                  #9
                  Originally posted by scottlington View Post
                  Yeh, we signed the letter and sent it back so I guess that binding then...
                  Well, it depends exactly what it said, the thing that you signed. If you can, please quote the exact wording.

                  Bear in mind for the future that you are not obliged to sign any contract offered to you by the LL or agent. You have a choice.


                  Thanks - again, just to be clear, I'm trying to figure if LL should not have benefited from any interest on deposit rather than get it for myself.
                  If you are asking about the arrangement between LL/agent, it's irrelevant.

                  I can only repeat that unless there is a clause saying that the LL is liable to pay you interest, then the LL is not liable to pay you interest.

                  Comment


                    #10
                    Re Whilst any deposit paid pre 2007 remains legally yours, the LL could do what he liked with it eg bet on the horses. If he lost all of it or doubled it, he was only required to repay initial deposit, in the absence of any in terest agreement to the contrary. Banks doo it all the time!
                    As for Registered business, by your own admission you were running a business from the property. I believe Company's House requires business nameplate to be affixed to exterior of Registered Office & customers/creditors would have this address on file & with poss implication on CRA files.
                    I can see LL could suffer financial loss by repairing the situation/admin after your departure.
                    In this case you say mea culpe and agree a full & final financial settlement with LL.

                    Comment


                      #11
                      I believe Company's House requires business nameplate to be affixed to exterior of Registered Office
                      Really? So my accountant's offices, which are registered as my business address, should be having our nameplate stuck to it's walls as well. Along with the dozens of other firms that use it for the same purpose.
                      I offer no guarantee that anything I say is correct. wysiwyg

                      Comment


                        #12
                        Originally posted by scottlington View Post
                        Re the AST, we had a number of letters during the almost 6 years we were at the property regarding renewing the tenancy etc,
                        What do these letters say about renewing? this may cast a different light entirely on whether the deposit should have been protected.
                        My advice is not based on formal legal training but experience gained in 20+ years in the letting industry.

                        Comment


                          #13
                          Originally posted by mariner View Post
                          I believe Company's House requires business nameplate to be affixed to exterior of Registered Office ...
                          I can see LL could suffer financial loss by repairing the situation/admin after your departure.
                          Nothing need be affixed to anything, inside or out. The company name merely has to be "so positioned that it may be easily seen by any visitor to that office, place or location." So, if you put the name in a photo frame on a hall table, clearly visible as the visitor enters, that would be enough.

                          http://www.legislation.gov.uk/uksi/2...ulation/5/made

                          Obviously, this would not cause any financial loss to the LL.

                          Comment


                            #14
                            Originally posted by jta View Post
                            Really? So my accountant's offices, which are registered as my business address, should be having our nameplate stuck to it's walls as well. Along with the dozens of other firms that use it for the same purpose.
                            See my previous post. It would seem that what accountants' offices can do to save space is use digital displays, rotating the names displayed.

                            Comment


                              #15
                              Originally posted by oaktree View Post
                              What do these letters say about renewing? this may cast a different light entirely on whether the deposit should have been protected.
                              Yes, OP needs to clarify his somewhat contradictory statements. First, he says he hasn't signed anything since 2006, then he says he has.

                              Originally posted by scottlington View Post
                              1) Our AST commenced in 2006 for 12 months after which we got letters from the letting egency saying it would continue with all the same T&Cs etc but we have never signed a new contract.
                              Originally posted by scottlington View Post
                              Yeh, we signed the letter and sent it back so I guess that binding then...

                              Comment

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