tenant claiming deposit paid

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    tenant claiming deposit paid

    Hi All,

    I have a tenant who has been in property for 6 years. They have never paid a deposit and all the tenancy agreements I have from them state a deposit of "NIL" or "N/A" (Not applicable).

    They are now in a periodic tenancy and I have advised them that I will not be renewing as I wish to sell the property.

    However at this stage they are now claiming they paid a deposit to the letting agent.

    I'm a bit confused on how I should proceed. They are currently a month in arrears and from our last conversation I am not expecting any more rent from them. They have also not paid on time for every month in the past year.

    I have contacted a firm that specialises in evicting people and they advised me to give them a letter saying that I have paid them x amount, and getting them to sign the letter which states they never received the deposit and this money is a gesture of goodwill, and they forgo any claim to the claimed deposit.

    Do they have a leg to stand on if I give them a section 21 notice. As I understand I can also issue a section 8 as the rent has been paid late on numerous occasions.

    Any ideas on how I can proceed?

    #2
    Proceed thuswise...

    - You try evicting via S21 - either doing it yourself (no problems, just be careful) or pay some company a huge amount to perhaps make errors at your expense...
    - Tenant may leave on S21 expiry... (many do...)
    - If they don't you start court proceedings...
    - Tenant (presumably) defends on grounds of having paid deposit which was not protected, making S21 invalid. Judge assesses evidence & decides. If tenant has a written recipt, proof of bank-transfer or cheques I'd say he has a good case...
    - If he wins you MUST return deposit (which you claim you never got..) before you can issue a new valid s21...
    - You then try eviction again..

    - Tenant leaves..

    - You sue agent for losses..

    Cheers!
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      Thanks for your reply.

      They won't have a reciept or anything. A deposit was never discussed and has only now come up once I told them I want the property back. I told them on the phone that I wanted a valuation done with a view to selling the property and arranged an appointment. At the time of the valuation the deposit issue was raised, I believe as a tactic to throw a spanner in the works.

      Im a bit hacked off as they were in arrears by 3 months at one point but I always gave them a chance to pay it back. They only got up to date on the rent about 5 months ago and still the rent is never paid on time.

      I'm thinking of getting an agent to issue a S21 and a S8 for the untimely payment of rent on my behalf.

      Just concerned how this deposit issue will affect proceedings.

      Comment


        #4
        they may well be getting "confused" with a deposit and agency fees

        Comment


          #5
          Does your contract say anything about a deposit, i.e. that one won't be taken or that it was a £nil amount?

          Either way, if they say a deposit was paid and you say it wasn't it's for them to prove it was (you can't prove a negative obviously)... civil courts only need the balance of probabilities to agree, not that it be beyond reasonable doubt, but unless they have a receipt or some other proof of payment you should be fine. One presumes the agent can also attest to the fact that no deposit was taken or discussed?
          I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

          Comment


            #6
            If they have no receipt for the alleged deposit and documents are consistently marked 'no deposit' they will struggle to persuade anyone that they paid it. Ask the agent what he will have charged them when they first signed up for the property, and ask them to check their bank account for that period to see if the payments to you/ the agent match what the agent says they will have been charged.
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


              #7
              Originally posted by drmorph View Post
              I have contacted a firm that specialises in evicting people and they advised me to give them a letter saying that I have paid them x amount, and getting them to sign the letter which states they never received the deposit and this money is a gesture of goodwill, and they forgo any claim to the claimed deposit.
              Just for the sake of clarity, are you saying that this firm is advising that you pay them a 'sweetener' to vacate? If so, then that's not in itself a dodgy thing to do, but I don't think it would be a good idea in this case - if the tenant is claiming that you owe them deposit money then by offering them cash now you really risk muddying the waters if this ever went before a judge.

              Comment


                #8
                Tell them you will happily refund the deposit they paid... send them a cheque for nil pounds & nil pence.

                Comment


                  #9
                  Thanks you to all of you for your response......much appreciated.

                  To clarify a few of the questions being asked.

                  The tenants are saying a deposit and not letting fees were paid, although this is a good thought and one I will confirm with them, although I suspect this is a complete fabrication designed to allow them to stay in the property for longer as they are currently renting at about £150/month below market value.

                  I have 6 tenancy agreements covering the time they were at the property and the first 4 say NIL and the last two say N/A. All 6 have been signed by me, the tenant and my wife as a witness signature. I always drafted two tenancy agreements which we both signed. I left one copy for the tenant and kept the other for myself. Their last tenancy agreement expired a few months ago and they are now in a periodic tenancy.

                  I contacted the agent who the letting was done through but they only keep records for the past 3 years and have no record of this tenant having paid a deposit presumably because it would have been a while ago.

                  The firm is not advising me to offer them a sweetner to vacate the property but a goodwill gesture to be paid for a deposit they claimed was paid. This payment is NOT a return of the deposit, and the wording states that they did not pay a deposit and the payment is a full and final settlement with regards to any deposit issues. The reasoning being if a judge sides with them and decides a deposit was paid then I would have to pay 3 times the deposit back to the tenant as a fine, so he advised me to first resolve the deposit issue and then proceed with the S21. Personally I don't see how a judge would come to this decision but I bow to others better judgement as I have only ever let the one property to the same tenants.

                  Would it be a good idea to issue a S21 ASAP giving them two months notice from the last day of the rental period...ie two months from the 31st Jan?

                  Comment


                    #10
                    I think if your contract(s) says NIL or N/A as above and they have signed it then the court would laugh at them unless they somehow come up with a receipt - which if they do would clearly be a fake.

                    Obviously it's for you to decide but I think they are attempting to extort you, nothing more, nothing less.... I wouldn't pay them a penny with those tenancy agreements in hand.

                    Yes, issue a Sec 21, be shot of the dishonest, lying, *insert profanities* as soon as possible.





                    "The reasoning being if a judge sides with them and decides a deposit was paid then I would have to pay 3 times the deposit back to the tenant as a fine, so he advised me to first resolve the deposit issue and then proceed with the S21."

                    It would be between 1 and 3x the deposit, not 3x by default (that used to be the case but has now changed), and their costs potentially were you to lose..... really though if you've got those signed tenancy agreements as you say then don't give them anything. You are being extorted, don't bow to it.

                    Your agents bank will have records going back more than 3 years so if you can try and get the agent to obtain bank statements for that period showing any transactions from your tenant, i.e. no deposit going to them. Do the same for your own account. It's for them to prove they paid though as before said, not you to prove they didn't, and as you have those agreements they'd need to have something pretty unequivocal to prove they did.
                    I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

                    Comment


                      #11
                      Thanks for your response.

                      The firm did actually say upto 3 months. I should have made that clear.

                      I was feeling quite confident but when I decided to get advice from this firm their advice made me quite nervous.....hence why I'm up at this ungodly hour as I can't get to sleep. Haven't been able to think of much else the past week or so. I'm considering whether to continue using them at this time although I will talk to them again on Monday.

                      I'll certainly have a word with the letting agent although I can't see them being helpful. It took them a full week to confirm they didn't have my records.

                      Any ideas on a firm I can use with regards to eviction. I'm self employed and don't live near the rental property so any time I take off means money out my pocket and I'd rather let someone else deal with the stress.

                      Either way it sounds like a S21 should be served ASAP. I would bet good money I get no further rent paid although I'm hoping I can claim all this back after they're evicted. Fingers crossed they'll leave of their own accord once the notice is served.

                      I tried putting the rent up a few months ago but was met with real resistance and they always put off an appointment often at the last minute for about 2 months. I feel quite angry as I've been very flexible when they haven't paid on time in the past.

                      Many thanks for the words of advice to everyone who has taken the time to respond....Off to bed now to try and get some sleep.

                      Comment


                        #12
                        Originally posted by drmorph View Post
                        I have 6 tenancy agreements covering the time they were at the property and the first 4 say NIL and the last two say N/A.
                        I'd say that it's only the first agreement, and what that says about it, that's important here. (The tenant would say that "NIL" or "N/A" on the others were because the deposit had already been paid, therefore no further payment was needed.)

                        I contacted the agent who the letting was done through but they only keep records for the past 3 years and have no record of this tenant having paid a deposit presumably because it would have been a while ago.
                        Which doesn't help you at all, obviously.

                        The firm is not advising me to offer them a sweetner to vacate the property but a goodwill gesture to be paid for a deposit they claimed was paid. This payment is NOT a return of the deposit, and the wording states that they did not pay a deposit and the payment is a full and final settlement with regards to any deposit issues. The reasoning being if a judge sides with them and decides a deposit was paid then I would have to pay 3 times the deposit back to the tenant as a fine, so he advised me to first resolve the deposit issue and then proceed with the S21.
                        I think that's a really bad idea. If this is a 'professional' tenant who is determined to shaft you, then he could decline your offer and show it to the judge, saying 'Look, the landlord knows full well that he's liable to pay me 3X the deposit, but has tried to buy me off by paying me only 1X. Why on earth would he make me this offer if he genuinely hadn't taken a deposit from me?"


                        The fact that the tenant won't be able to produce a receipt for the deposit stands you in good stead, but bear in mind that judges do tend to be tenant-friendly, so when the tenant says he's lost the receipt, if there's any benefit of the doubt to be given it's likely to be to the tenant, not you. I think all this hinges on exactly what the's stated on the original AST agreement... if it clearly states no deposit was paid, and it's not open to misinterpretation in any way, then surely you should be safe?

                        Comment


                          #13
                          Thanks for that advice.

                          What you say makes sense and I've decided against the offer in full and final settlement with regards to the deposit.

                          The original tenancy agreement states a deposit of NIL so I think its pretty clear and not open to interpretation.

                          Comment


                            #14
                            Hope it works out.

                            Can you trust this wonderful agent not to have either taken a deposit - then "forgotten" to tell you or incorrectly issued a receipt stating "deposit" (say some holding rent paid before contract signed). Think I'd ask agent to confirm what they say in writing/email.

                            Let us know what happens

                            Cheers!
                            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                            Comment


                              #15
                              I'm certain no deposit was taken, but good idea, getting it in writing can only help.

                              The letting agent is also under a different owner now, which is why I think they haven't been overly helpful.

                              I'll certainly keep everyone updated and hopefully the information in this thread will help someone else.

                              Comment

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