one month notice gone back on

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    one month notice gone back on

    Hi there, I moved into a basement flat at the beginning of July, after paying up-front a full year's rent (I had recently lost my job and the L wanted it as assurance- I was stuck, so agreed), and since then have experienced problems with damp- dark patches on the walls, water pooling on the bathroom floor, and recently clothes, coats and boots going mouldy. I reported this to my landlord initially on 6th July, but no action was taken. As I began to increase the pressure, corresponding with my landlord by email and receiving regular replies, the situation worsened. Eventually, yesterday my landlord said as I was not happy, he would take my email as 30 days' notice and refund 9 months' rent to cover the period up until when I would move out (22/9/12), and also keep my deposit. I agreed to moving out, as I figured it would be more palatable than staying, but I did ask why he would keep my deposit- I understand he is able to, due to my ending the tenancy early, but was concerned as:
    a) I have never seen a copy of my tenancy agreement despite asking numerous times
    b) After contacting the 'big three' deposit protection schemes, there is no record of my deposit being protected. (Could it be protected anywhere else? I have asked L for the tenancy deposit reference etc but as yet this has not been provided).

    So all was well- I had written confirmation I could move out, and my rent would be refunded (the deposit question notwithstanding) when this morning I received another email from L saying that instead, the letting agency could put the flat back on the market and I must stay until they re-let it, at which point my rent and deposit will be returned in full. I'm aware this is standard practice, but the flat is not very attractive at present and I can't have the uncertainty of whether or not a new tenant will be secured, and I'm shocked at the sudden backtrack as I had started to make alternative plans. I have said I would prefer to stick to the notice served yesterday by L, and begin arranging a new flat in a new location.

    Does the email notice count as binding? Will L now have to refund my rent as stated? And where do I stand with not having a copy of the contract/ details of the deposit scheme?
    Any advice would be truly, truly appreciated as after a month of to-ing and fro-ing I was overjoyed to seemingly finally have a solution, only to backtrack just as swiftly!
    Thanks

    #2
    If you landlord has accepted your surrender by e-mail then I think a court would find it binding. The fact the deposit appears to be unprotected makes a huge difference.

    Even if you move out (or stay) your landlord is in big trouble concerning the deposit as you could instigate court action and he will be fined up to 3x your deposit. He can't avoid this so you might want to take it up with him.
    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


      #3
      Originally posted by kwallah View Post
      Eventually, yesterday my landlord said as I was not happy, he would take my email as 30 days' notice and refund 9 months' rent to cover the period up until when I would move out (22/9/12), and also keep my deposit. I agreed to moving out,...

      ...
      So all was well- I had written confirmation I could move out, and my rent would be refunded (the deposit question notwithstanding) when this morning I received another email from L saying that instead, the letting agency could put the flat back on the market and I must stay until they re-let it, at which point my rent and deposit will be returned in full.

      Does the email notice count as binding? Will L now have to refund my rent as stated?
      Paul_f is wrong.*

      The 'notice' cannot be binding as it is not legally possible to give notice to end the fixed term tenancy 'early' (unless there is a break clause). The LL hasn't given you notice, anyway, he has just put forward terms for a future surrender. A surrender which hasn't happened yet. Your tenancy contract is binding, and it doesn't magically end via an email exchange.

      An early surrender may happen in one of two ways: either a) you/LL execute a written/witnessed Deed of Surrender, or, alternatively, b) the surrender may occur 'by operation of law'; this is when both parties' actions are inconsistent with the tenancy continuing (e.g. a very simple version of this is that T moves out, and LL re-lets the property).

      The email exchange isn't either of these forms of surrender. Whilst the terms of a surrender may have been put forward and agreed, this isn't the same as it actually happening.

      If a surrender is agreed by Deed of Surrender, and the terms are negotiated, then the LL is free to put forward any terms he likes, such as keeping your deposit, or you paying £X to him in exchange for his agreement. You are equally free to refuse, in which case the tenancy continues and you remain liable for rent up to fixed term expiry.

      *If* your contract says that the rent for the full 12 month term is due in advance at the start of the tenancy (as opposed to payable monthly), then it's not legally refundable even if the tenancy ends early for whatever reason (but we don't know what the contract says).

      The LL's failure to comply with deposit protection has no bearing on the above, other than perhaps to provide you with a negotiating tool.

      And where do I stand with not having a copy of the contract/ details of the deposit scheme?...

      a) I have never seen a copy of my tenancy agreement despite asking numerous times
      b) After contacting the 'big three' deposit protection schemes, there is no record of my deposit being protected. (Could it be protected anywhere else? I have asked L for the tenancy deposit reference etc but as yet this has not been provided).
      a) You can demand a statement of the terms of your tenancy under s.20A Housing Act 1988.

      b) There are only three authorized protection schemes. If your deposit it not protected, you have a case to claim for non-compliance under s.214 Housing Act 2004. However, this is not a straightforward type of claim; you'd need legal advice, and court fees may exceed £1,500.

      ====
      * It's possible, I suppose, that Paul_f is arguing that LL is estopped from going back on his email. I think this would be stretching it, particularly when the LL changed the terms on offer within 24 hours.

      Comment


        #4
        Originally posted by westminster View Post

        Paul is wrong. It's possible, I suppose, that Paul is arguing that LL is estopped from going back on his email. I think this would be stretching it, particularly when the LL changed the terms on offer within 24 hours.
        I did say that if it went to court, and on the probablities of the court siding with the tenant, as seems likely given such circumstances, and the landlord allegedly having failed to protect the deposit, it might just find in the tenant's favour. My advice to the tenant would be "see you in court" if life became difficult with the landlord.
        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


          #5
          Originally posted by Paul_f View Post
          I did say that if it went to court, and on the probablities of the court siding with the tenant, as seems likely given such circumstances, and the landlord allegedly having failed to protect the deposit, it might just find in the tenant's favour.
          I didn't think you were arguing estoppel. It would seem your argument for the binding nature of LL's email is based on the premise of the court's sympathy, as opposed to any legal argument.

          So let's say that OP relies on LL's email, believing it 'binding' (as you say), and vacates on 22nd September. No Deed of Surrender is executed. LL then fails to refund any rent as promised.

          OP brings a claim against the LL for refund of his rent as from the date of the alleged surrender up to July 2013.

          The court would have to decide whether or not a surrender was effected. What would it look to when considering this point? Would it consider whether or not the deposit was protected? I don't think so. I think it's more likely that it would consider the facts actually pertinent to whether or not a surrender took place, as opposed to basing its judgment on an unrelated sympathy vote (i.e. 'oh, poor tenant with an unprotected deposit, let's just ignore case law').

          However much the court would like to 'side' with the tenant, it is actually obliged to apply the law, not its feelings about the parties.

          Comment


            #6
            Thankyou everyone for the advice- it's most helpful. As it happens, I received another email yesterday from L and it seems our initial agreement still 'stands'- I will be moving out 22/9/12 and he will refund the remaining rent for the year. Hopefully this all runs smoothly, as I'm aware he's not obliged to allow me to do that.
            In terms of the deposit- I'm not sure how to handle it. Certainly I wouldn't expect him to return it before the end of my tenancy, and apart from the problems mentioned above he seems a lovely man, if absent. Would the fact that I ended my tenancy early (assuming I leave the flat pristine, as I plan to, and he returns the rent in good time) affect a potential claim if I did want to claim my deposit back as non-protected, or would it be dealt with as a seperate issue altogether as discussed above? I have no intention of taking L to court, as he has been kind in allowing me to move out rather than fester away in this flat! He has said he should be entitled to keep the deposit to carry out 'repairs' and sorting the damp. However, the deposit is a lot of money that as far as I'm aware, should not be used as 'pocket money' for L. Where might I stand on this?

            Comment


              #7
              The 'penalty' for non-protection of the deposit is not affected by any money you do or do not owe the landlord.

              As to him keeping the deposit - he has no 'right' to keep it, however, it is down to negotiation - if the deal is "You can go if you let me keep the deposit", you can either agree or not. If you don't agree, then you can't go.

              Comment


                #8
                Originally posted by kwallah View Post
                He has said he should be entitled to keep the deposit to carry out 'repairs' and sorting the damp. However, the deposit is a lot of money that as far as I'm aware, should not be used as 'pocket money' for L. Where might I stand on this?
                You are free to reject the terms on offer; i.e., refund of rent for the remainder of the fixed term, LL to keep deposit. If you reject it, then you may expect the LL to refuse to refund the rent and release you from the tenancy. Your choice.

                You cannot expect to walk away from a binding contract with no financial consequence.

                Comment

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