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jonnybaynton
22-03-2010, 13:31 PM
Hi,
Hope this isn't too long :/

Over 2 weeks ago I found a room for rent through an estate agent. From the start it was a mess as the landlady got involved with the dealings between myself and the estate agent. The landlady changed her mind several times over the course of 3 days as to what the rent would be and what it would include, to the point where I was having serious second thoughts. The problem was that I was paying alot of money each night to stay in a hotel due to unfortunate circumstances, so I was desperate to get a roof over my head.

We came to an agreement of £600 a month with a deposit of £600 for only a short let of 2 months. As my references would be from another country, to save me extra costs from the estate agent, I agreed to pay the deposit and the full 2 months, which would be paid on the monday (as it was a sunday and I had already booked another night in the hotel). For some reason the landlady wanted me to meet her on the sunday night to pay her the deposit in cash and the rest of the 2 months upfront on the monday. I was told I would recieve the keys from her that night. I had a really bad feeling now, but still I was desperate and didn't want to waste any more money on hotel rooms, neither did I want to lose the room, so I agreed. When asked about why she wanted the deposit in cash, she replied because she didn't want to pay unneccessary taxes and expenses. I asked for a reciept (which she gave) but she said she was in a rush and didn't have the keys with her (we met at her car). On the monday neither the estate agent or the landlady could provide me with an IBAN number (due to the money being transfered from over seas) so we quickly agreed to £600 cash on that Monday and another £600 on the Tuesday. Then I was told I couldn't move in until I had paid all the money, to which I simply had enough and asked for my deposit back due to unproffessionalism of it all.

The estate agent has completely backed out now saying its between myself and the Landlady, and the Landlady is saying she wants the extra £1200 pounds. I signed nothing, and in my eyes she broke her verbal agreement by not giving me the keys as was promised on the sunday night after the deposit was paid. Its been over 2 weeks since I gave her the deposit and I've seen no documentation on anything.

Where do I stand?

Thanks in advance for any advice

Jon

westminster
22-03-2010, 19:50 PM
The estate agent has completely backed out now saying its between myself and the Landlady, and the Landlady is saying she wants the extra £1200 pounds. I signed nothing, and in my eyes she broke her verbal agreement by not giving me the keys as was promised on the sunday night after the deposit was paid. Its been over 2 weeks since I gave her the deposit and I've seen no documentation on anything.

Where do I stand?

I'm not surprised you backed out. Where you stand is that the landlady owes you the deposit back, in the absence of any agreement that she was entitled to keep it. Well done for asking for a receipt.

Do you have the landlady's address? If so, what you now do is this. Send a letter to the landlady asking for the money back (keep a copy and get a free certificate of posting from the post office). Give a deadline to pay, and say you will issue county court proceedings if she doesn't pay.

If you don't have the landlady's address, write c/o the agent.

If you don't get payment by the deadline, you can issue a county court claim via
https://www.moneyclaim.gov.uk/csmco2/index.jsp

Strictly speaking, you need the landlady's home address to issue the claim, so if you don't, let us know what contact details/information you have and we can take it from there.

Also, how long are you going to be resident in the UK, because claims can take up to 4-6 months from start to finish?

And is the agent a member of a professional body such as http://www.arla.co.uk/ ?

jonnybaynton
23-03-2010, 15:48 PM
Your advice is sound and what I needed to hear, thank you West. Getting the £600 back is more based on principle rather than needing the cash. Finally managed to get to the CAB today and they said precisely the same thing. It's going to be a long process I know, but i'm not going to just sit back and allow this person to take me for a mug.

One question that the advisor from CAB couldn't answer was whether or not the TDS would count in this matter. The deposit was taken over 14 days ago and wasn't placed into a scheme, but as the tenancy verbal agreement was broken the following day after the deposit was given, before anything was signed, does that mean the TDS is pointless i.e. even if I went to court to get the deposit back due to the fact she never deposited it into the scheme, there was no written tenancy agreement for the scheme to work. I'm not sure how that would work in court.

Anyway, I shall compose a letter and do as you advised... I'll keep this updated

Thankyou once again

westminster
23-03-2010, 18:56 PM
One question that the advisor from CAB couldn't answer was whether or not the TDS would count in this matter. The deposit was taken over 14 days ago and wasn't placed into a scheme, but as the tenancy verbal agreement was broken the following day after the deposit was given, before anything was signed, does that mean the TDS is pointless i.e. even if I went to court to get the deposit back due to the fact she never deposited it into the scheme, there was no written tenancy agreement for the scheme to work. I'm not sure how that would work in court.
There is no definitive answer to this. Deposit protection might possibly apply, because the statute (s.212(8) of Housing Act 2004) says that:

“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.

Here's a link to the statute:
http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4

But I don't know whether it's even possible for the landlady to comply when no tenancy exists.

There was a recent high court case (therefore binding on lower courts) which ruled that no penalty can be applied if a deposit is protected late with the custodial scheme:
http://www.depositprotection.com/
so, if it *is* possible to protect it in these circumstances, and the LL did so after receiving your claim, your claim might fail. Also, as deposit protection claims must be issued on form N208, you may risk exposure to the defendant's legal fees:
http://blog.painsmith.co.uk/2009/05/21/proper-place-for-tds-claims/
so it's highly advisable to take legal advice before starting a claim for non-compliance.

(A claim only for return of the deposit is v. low risk as the most you stand to lose is the court fees, as such a claim would be allocated to the small claims track).

It's an interesting question, though. You could try contacting PainSmith solicitors (whose blog I link to above). They might possibly take on your case on a no-win-no-fee basis assuming you have some supporting evidence - for example, does the receipt actually state it is a deposit for the tenancy at such-and-such address? And you say you have 'no documentation' but is there anything at all in writing, such as an email discussing the proposed tenancy?

Ah....I've only just noticed you say the LL is demanding £1200... So she's still in touch with you? This leaves open the possibility that she may, in making such demands, give you more evidence.

Preston
24-03-2010, 08:39 AM
Here's my thoughts. It will be interesting to hear the views of those more experienced in this type of dispute.

The landlord, presumably, may argue that:

a) the deposit has been taken "in connection with a shorthold tenancy" within the meaning of section 213 of the Housing Act 2004 or
b) the deposit was not taken in connection with the tenancy, but rather was a holding deposit under a separate contract, or
c) that there was never an intention to create a shorhold tenancy and so the deposit protection rules do not apply.

In relation to (c), if the letting involved the granting of exclusive possession of a room or a flat at a monthly rent and no other services were to be provided (such as meals or cleaning), then it is very likely that the agreement was for an assured shorthold tenancy.

With regard to (b), this is a possibility I guess, but there are many threads on this forum showing how, in the absence of very clear documentary evidence it is very difficult indeed for landlords or agents to enforce charges against such deposits.

Which leaves (a) to be the most likely scenario. This is reinforced by the fact that the landlord seems to be insisting on the payment of two months rent. Not something she would be likely to do if she were going to rely on (b).

So, it seems reasonably clear to me that the deposit should have been protected.

With regard to the letting itself, it is clear that no tenancy was in fact created (because you did not enter in possession) and that there was at best an agreement to create a tenancy. In theory, if you agreed to move in and pay two months rent then that is what you should do. Equally, though, if she agreed to allow you into possession, then she should have done so. The fact that she did not, despite the fact that you had paid both a deposit and a month's rent in advance would seem to make your own argument very strong. Her argument seems to be that you have breached the agreement by not paying two months in advance, rather than one.

To rely on this, though, she would need to prove that this was a fundamental term of the agreement, which might be difficult in the absence of anything in writing. Also, she would have to accept that she had denied you access and that no tenancy had been created. I am by no means an expert in this issue, but my understanding then is that she would be suing you for breach of contract (rather than for rent) and so would have to demonstrate that she had both made a loss and that she had taken reasonable steps to mitigate that loss.

So, in a nutshell, I think you have a strong case and in addition to the points that Westminster has made you might want to sue her for failure to protect the deposit.

jonnybaynton
31-03-2010, 13:00 PM
To rely on this, though, she would need to prove that this was a fundamental term of the agreement, which might be difficult in the absence of anything in writing. Also, she would have to accept that she had denied you access and that no tenancy had been created. I am by no means an expert in this issue, but my understanding then is that she would be suing you for breach of contract (rather than for rent) and so would have to demonstrate that she had both made a loss and that she had taken reasonable steps to mitigate that loss.

So, in a nutshell, I think you have a strong case and in addition to the points that Westminster has made you might want to sue her for failure to protect the deposit.

Only a deposit of £600 was paid and the agreement was that I was to recieve the keys once this deposit was handed over, but I was given an excuse and I recieved no keys. After this, on the following day, the Land Lady wanted to see the rest of the money (2 months worth) in her account before she would hand over the keys.

Although this was a verbal agreement, I still have evidence to show this fact.

As for the protection of the deposit, I've been advised that there's not much of a case as there is too much time for the Land Lady to place the deposit into a scheme, thus making my claim void.

I've now sent a letter asking for the deposit back within 7 days, if not then I threatened to take further action through the small claims courts. She's no longer responding to my phone calls either.

Thanks West for the contact info for PainSmith. I've got in contact with them and sent my evidence over. Hopefully they come back to me with good news, fingers crossed!