Releasing the deposit - before the tenant vacates

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    Releasing the deposit - before the tenant vacates

    My tenant has refused to pay the final months rent stating that the deposit should be used instead. He has been served a S8 (arrears, persistent late payment and refusing access). He sent an email today advising that he has authorised the full payment to be returned to me for the last months rent.

    Can I accept the repayment, advise tenant that damage will be covered before rent arrears and still use the S8 should he not vacate on the agreed date? Or do I need to leave the funds where they are until he vacates?

    Can he cancel the repayment after he has initiated it using the DPS system?

    Thanks in advance.

    #2
    Usual advice here is deposit is for damages and repairs. If you get tenant's agreement to use for rent arrears, wait until tenanthas actually gone, otherwise they may walk away having trashed the property and you have no deposit left to cover it. Indeed, as you probably well know, S8 is not guaranteed to give you possession order, so tenant may agree now to let you take deposit as "last month's rent" but how do you know until he is gone, that this is his last month!

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      #3
      He can repay the amount to use using the DPS, but their is no option for him to decide what that money is for.
      Take the money now, but my advice is to use it for any damages, and then if you sue him, sue for rent.

      In short, DO NOT say anything as to the deposit allocation. If he has authorised like you says he has, then claim it from the DPS.
      Allow tenants to protect their own deposits. I want free money when they do it wrong

      Comment


        #4
        Originally posted by thesaint View Post
        He can repay the amount to use using the DPS, but their is no option for him to decide what that money is for.
        I am not sure that that is the case if we are talking about the tenant releasing the deposit. If a debtor owes money on more than one account then subject to any prior agreement to the contrary, if the debtor make a payment and specifies what it is to be applied to the creditor must apply it accordingly. Since the deposit is the tenant's money, releasing it is equivalent to the tenant paying the money to the landlord. If the tenant releases the deposit on the basis that it is to pay rent then it has to be applied to rent.

        If the landlord makes a claim on the deposit it is a different matter. He can then choose what to apply it to. However, it would seem that in this case the only quantifiable claim the landlord can justify at this stage is for rent. He cannot claim for any damage which may occur or which has not yet been assessed.

        It would seem therefore that the landlord has three choices:

        1. Accept the tenant's offer to release the deposit to pay rent.

        2. Make an immediate claim against the deposit for rent.

        3. Wait until the tenancy ends and claim for both rent and any damages.

        2 is pretty pointless if 1 is on offer. If 1 is on offer it has the distinct advantage over 3 that the landlord is certain to get at least the amount of the deposit and sooner rather than later. A bird in the hand...

        Comment


          #5
          Originally posted by thesaint View Post
          He can repay the amount to use using the DPS, but their is no option for him to decide what that money is for.
          I am talking about the actual process of the tenant using the DPS to send the landlord the money.
          There is no option available to release it for reason "X" but not reason "Y".

          The only option is for the tenant to choose the amount from £0 to the full amount.

          The OP has stated that the tenant has already authorised the payment to the landlord. My advice is given based on this being factual.
          Allow tenants to protect their own deposits. I want free money when they do it wrong

          Comment


            #6
            Thank you for your comments.

            I think I may leave it where it is for now. We will always be able to do a single process claim (eventually). For me the most important thing is gaining possession. I would not want to complicate things should we find ourselves progressing to court.

            Thanks again.

            Comment


              #7
              You can't leave it where it is if the tenant has authorised the payment to yourself.

              You will automatically either receive a cheque, or a bank credit.
              Unless you are now saying that the tenant has not authorised the payment?
              Allow tenants to protect their own deposits. I want free money when they do it wrong

              Comment

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