PDA

View Full Version : deposit dispute



crud67
09-11-2009, 13:05 PM
Can someone please help me. A prospective tenant signed a ash tenancy agreement (privately) on the 24/8/09 on the 31/8/09 she advised me she wasn't moving in she had paid me £950 rent and deposit she advised me to keep the rent but wanted the deposit back ( it wasn't protected I hadn't got round to it with moving and had another 7 days to do so). I advised her it would all depend how quickly I got a new tenant. Therefore I put the house in the hands of a letting agent, a new tenant moved in on the 9/10/09 but I have obviously incurred the the fee from the letting agent and also had to purchase new curtain poles etc as she asked them to be left for her, she is still wanting her deposit back. Can someone please advise where I stand thanks.........

tom999
09-11-2009, 13:14 PM
A prospective tenant signed a ash tenancy agreementDo you mean Assured Shorthold Tenancy agreement?

If so, the deposit should have been protected* and tenant given deposit scheme info. within 14 days of LL receiving the deposit.

Return the deposit to the tenant and keep proof of this, in case there is any dispute.

Also, any rent that you have taken, that is not used as rent, may be seen (by a court) as a deposit.

* Assumes AST in E&W and annual rent < £25k.

crud67
09-11-2009, 13:21 PM
Thanks for the quick response. Yeah I meant assured shorthold tenancy. So even though she didn't move in the deposit should still have been protected? If so why should receive all of it back? as it would run from 24th to 24th and they didn't move in until the 9th?????

thanks

tom999
09-11-2009, 13:35 PM
So even though she didn't move in the deposit should still have been protected?T does not have to be resident for a tenancy to have been created.


If so why should receive all of it back?Because it's the T's. LL has to prove deductions are required.

Please learn the basics of landlording. Join a landlord's association; they have good courses. If you can't find the time to do this, maybe landlording is not for you - if not for yourself then at least for the sake of your tenant's.

jeffrey
09-11-2009, 13:37 PM
T does not have to be resident for a tenancy to have been created.
But it's not an AST unless T uses premises as only/main home; and, if it's not an AST, Deposit Protection does not apply.

tom999
09-11-2009, 13:43 PM
Agreed, as T has not moved in.

But deposit still needs to be returned.

crud67
09-11-2009, 13:57 PM
Isn't that a bit or a contradiction??

westminster
09-11-2009, 14:44 PM
But it's not an AST unless T uses premises as only/main home; and, if it's not an AST, Deposit Protection does not apply.

Could it be argued that the deposit was intended to be held/taken in connection with an AST? (Just playing devil's advocate).


S.212 (8) HA 2004
“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—
(a)the performance of any obligations of the tenant, or
(b)the discharge of any liability of his,
arising under or in connection with the tenancy.

jeffrey
09-11-2009, 14:52 PM
in relation to a shorthold tenancy: what could this mean if no tenancy ever exists?

westminster
09-11-2009, 15:23 PM
in relation to a shorthold tenancy: what could this mean if no tenancy ever exists?

Well, the deposit was intended to held in connection with the AST as per HA definition. Don't get me wrong, I'm of the same opinion as you - no AST/no protection - but this debate has come up in past threads and there's someone (can't remember who) who always argues this point. There was one where the would-be T had paid the deposit and the TA hadn't even been signed when the T pulled out. A lot of deposits are handed over before the TA is signed and the HA does say the money must be protected within 14 days of this event - of course, there's nothing in the legislation about what happens if T doesn't go on to sign TA or signs but doesn't move in...

I've never seen any reported cases where a s.214 claim has been made in these circumstances and I doubt any such claim would succeed.