Legal to withhold keys/access to property until the rent and deposit paid in full?

[DoricPixie]

DundeeDancer,

From what you’ve posted so far yes you really need to do the courses and join SaL. Carry on ad you are and it won’t long before you find yourself in hot water.

Signing the tenancy agreement before you had both the full deposit and first month’s rent was foolish. I wouldn’t fancy being in your shoes if the tenant decides to give Shelter Scotland a phone. That said I wouldn’t feel comfortable handing over the keys without the cleared funds and the fact the tenant doesn’t have the deposit and rent to hand over in one go in the first place would have alarm bells ringing for the whole tenancy as the pessimist in me would be wondering how long before the tenant is in arrears.

See if you can mutually agree with the prospective tenant to end the contract before the tenancy ever starts.

[nukecad]

"The first payment will be paid on or before 28 January 2022 and will be for the sum of £XXX", "At the start date of the tenancy or before, a deposit of £YYY will be paid by the Tenant to the Landlord."

You have a problem with that wording:
"the start date of the tenancy"
to me that actually says/implies that the tenancy starting is not dependent of the deposit being paid.

Those 2 sentences are actually much further apart on the standard form than you have quoted them there, the first is from clause 8 'Rent' the other from clause 11 'Deposits'.
Again showing that they are seperate matters.

If used then the second one does require the deposit to be paid, but the wording makes that a seperate matter from the tenancy itself starting.
The deposit being late would not prevent the tenancy starting.

So does the 40% they have paid cover the 'sum of £XXX'? (Is it actually the sum of £XXX?).
If so then the tenancy will start, deposit paid on time or not.

[DundeeDancer]

Careful:
- IMHO these days holding deposit ain;t worth the bother..

You've also called it a "damage deposit". Presumably that means it can't be used for arrears, or cleaning??
Slàinte mhath!

Thanks for the tips

I like to get some money commitment from the tenant as early as possible. So I ask for a holding-deposit which in reality is just the first months rent paid early and to differentiate between that "holding deposit/first months rent" and the normal deposit which I name it as "damage deposit" in my email I use to set up the tenacy agreement, where I send a PDF document where they are just refered to as rent and deposit in the normal text. So hopefully that is all fine but maybe I do need to do the courses.

Anyway the good news is after 6 seperate payments from 2 different bank accounts, all the funds are now in. Would have been good if the tenant had explain that was the plan and not got me worried emailing to say are all the funds there now and only 3 payments showing with 40% of the funds being there.

The tenant also did push for tenancy start date to be ASAP so the the timeline being tight have also added to the excitement.

Seems we are all set for tomorrow, fingers crossed for happy letting

[AndrewDod]

Of course you will not hand the keys over. Cancel the contract completely and do that as soon as possible if money is not received when promised and before the tenancy starts.

To do otherwise would be idiotic.

Clearly return all money already paid. Make sure nobody else (like an agent) is going to hand keys over and that you make sure they cannot break in and pretend you handed keys over (CCTV at front door). Make sure well documented in writing that no keys will be handed over until....

[theartfullodger]

Careful: See the expert's view here...
https://scotland.shelter.org.uk/hous...s_and_deposits

Landlords cannot make tenants pay a holding deposit (sometimes called key money) to secure a property in advance of the tenancy beginning.

- IMHO these days holding deposit ain;t worth the bother..

You've also called it a "damage deposit". Presumably that means it can't be used for arrears, or cleaning??

Dunno what to advise, sorry, other than I think change the paperwork. And join SaL if not already a member
https://scottishlandlords.com/join-us/
- and 'phone them for advice on your matter.... (sorry, M_Fri, 9-17:00).
.. they have loads & loads of paperwork in addition to just the PRT. Their landlord checklist is a useful aide memoire...

& apologies if I'm stating the obvious, but if not already done so, or the equivalent , do the relevant LaS courses...

https://www.landlordaccreditationsco...lord-training/


Slàinte mhath!

[DundeeDancer]

SCOTTISH GOVERNMENT PRIVATE RESIDENTIAL TENANCY AGREEMENT signed electronically via a PDF document being email to tenant and tenant then responding to saying:-
"I agree with the Terms of the attached Tenancy Agreement.
I will pay the holding deposit within the next five days of £XXX, and pay the damage deposit of £YYY by the 30th of January."

The Tenacy Agreement says "The first payment will be paid on or before 28 January 2022 and will be for the sum of £XXX", "At the start date of the tenancy or before, a deposit of £YYY will be paid by the Tenant to the Landlord."

I asked for all funds to be cleared into account by 5pm today i.e. 29th for key hand over to occur tomorrow but I will be willing to be a little flexible on that i.e. if all the funds are present on 30th I will preform key-handover but if they aren't will I be on the right side of the law with-holding keys? I feel I should be but I'm not certain.

[theartfullodger]

Has tenancy been signed? PRT presumably?

Normally should be in the Scottish forum.

My process is receive funds in full cleared, give receipt if necessary, then sign tenancy etc etc etc then hand over keys .

Scottish law more than a bit different to "the rest of the UK". Law is different in each country in this disunited queendom.

I wouldn't accept only 40%.

[DundeeDancer]

Normally the rent and deposit are paid in full the day before the tenancy start date but if that does not happen say only 40% of the expected funds are transferred to the Landlords account what then? Is not giving keys/access legal? Speaking about property in Scotland in particular but I guess it is similar in the whole of the UK.

Many thanks in advance for useful advice. DD.