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lilpiggy
20-12-2011, 09:33 AM
I have tenants due to vacate property on the 8th January, notice was given and they agreed in writing that they would move out.

I have given them 2 letters over the last few weeks advising them that they are in breach of their tenancy agreement, they are causing a nuisance to the neighbours and myself through noise levels etc and pointing out the sections in the tenancy agreement that they have breached and that further breach would result in applying to the court for eviction, or the police being called relating to noise levels in the early hours of the morning.
(I live below the property).
The 2nd letter, pointed out to them the sections of agreement that needed to be adhered to when they moved out. ie.. the garden being tidyied, property in same state as when they moved in. Windows to be cleaned etc..

I have also advised that upon them moving out, I would carry out a property inspection and their deposit would be returned to them subject to any damages found. Within 14 days.

They are now accusing me of bullying, intimidation, victimisation and threats from the letters I sent, so that I can keep their deposit !!!! Demanding an inspection date now and not after they have moved out. They have also advised me in writing that if their deposit is not given to them in full on the day they move out they will not give me the keys back. If they do not give me the keys back can I call the police ? I understand that I will then have to issue an S21.

Any advice will be appreciated, thanks you..

islandgirl
20-12-2011, 09:48 AM
is the deposit in a scheme?

mind the gap
20-12-2011, 10:01 AM
You may like to advise them that if they refuse to return the keys n the last day of their tenancy then the tenancy and their liability for rent continue (regardless of whether they move out of not) and that rent is reservable monthly (i.e. they cannot just pay a proportion of the rent until they do finally decide to give the keys back).

If they do vacate and take all their stuff with them, you may prefer simply to change the locks/barrels as you would at the end of most tenancies for security's sake - then the set of keys they are refusing to return are worthless anyway. Claim for the new locks from their deposit, though.

jjlandlord
20-12-2011, 10:07 AM
Just make sure that you have a record of them vacating and ending the tenancy.
Beyond that if keys are not returned, you can claim cost of changing the locks from their deposit.

lilpiggy
20-12-2011, 10:08 AM
Thanks for replies.

The deposit is not in a TDS as I live in the same property/house. I was of the understanding that I did not need one as there are 2 flats in the same house.

The tenant is requesting the certificate for above but I do not have one.

I have been advised since that I possibly am not correct, the property is a semi detached house, I live in the bottom flat and the tenants live in the upstairs flat.

What should I do, and am I correct or not ?

mind the gap
20-12-2011, 16:08 PM
It sounds as though the deposit should be protected, yes. It's only resident LLs with lodgers who don't need to protect deposits, on the whole. I would lodge your T's money with the DPS immediately if I were you, then T cannot complain/sue you. It's free and takes only a few minutes to do:

http://www.depositprotection.com/

The when she finally does vacate, claim the cost of new locks and unpaid rent if possible.

LesleyAnne
20-12-2011, 22:01 PM
I would agree with MTG, that deposit protection does apply in these circumstances. If you were sharing the property with shared kitchen/bathroom etc, they would be your lodgers and deposit protection is not compulsory. However, if the flats are totally self-contained, then protection is required.

Protect it now with DPS as advised above, and print off the prescribed information for the tenant. They may jump up and down over your protecting it late and shout about possibly claiming 3x the deposit value, but there is no penalty for late protection, only non-protection, so get on with it now!

Regarding possibly damages/deductions, did you have a full and thorough inventory of the condition of the property at the start? If you need to apply to DPS for deductions, you need proof of the before and after state of the property.

From your OP, do I conclude that you gave them notice? I am curious over what form your notice to them took? As you are now asking whether you need to issue an S21, how did you give them notice in the first place? The S21 is the usual route to advise a tenant you are seeking possession. I am not sure whether their written confirmation that they would leave on xx date over-rides this - perhaps those more legally experienced that I can confirm please?

lilpiggy
22-12-2011, 13:22 PM
Thanks for your replies. I did go to the local citizens advice bureau but was advised they cannot give me any advice as I am a landlord.. So I then contacted a solicitor. He advised me to just give them their deposit back irrelevant of any damages just so that they go & the matter is finished. Learn for the next time....
I asked him if I should put the deposit in the TDS now & he said no point.. I have since registered to the scheme & think I will put the deposit in anyway. Will I incurr any penalty from the TDS itself for submitting a late deposit ??

The tenancy was due to end and before I found out that I had to submit an S21, I advised the tenants that I did not wish to renew their agreement. Again, I learnt something new..

It seems as long as they are getting their full deposit back they will leave, so will see what the property inspection brings etc..

jta
22-12-2011, 14:09 PM
I did go to the local citizens advice bureau but was advised they cannot give me any advice as I am a landlord..

That's nice that is. So what are we landlords then? Sub-citizens!

mind the gap
22-12-2011, 15:57 PM
Will I incurr any penalty from the TDS itself for submitting a late deposit ??



Don't use the TDS, use the DPS (see my post above). It is the only free one and yes, you can lodge a deposit late without penalty.

mariner
22-12-2011, 16:17 PM
Once deposit is protected, you MUST provide Ts with stat 'required info' before you can issue a valid s21

midlandslandlord
22-12-2011, 16:35 PM
I did go to the local citizens advice bureau but was advised they cannot give me any advice as I am a landlord.

That's bang out of order, but I'm not surprised.

Is CAB funded by our donations and taxes or is it not?

I can see the point if you are a professional LL with 126 or so properties, but not if you are a small LL and a private citizen.

Apart from anything else, you are trying to save the having to deal with your T.

I've had the same "we don't talk to landlords" response from the Shelter helpdesk before, but Shelter are a group who campaign for mega-rega-lation on LLs and put out a stream of dodgy statistics to boot, so I expect it.

CAB should be better than that. Grrr.

Questions in the House, perhaps :-).

ML

mariner
22-12-2011, 23:30 PM
Calmly reply " I appreciate that,but I am asking as a citizen and your organisation's name indicates you offer advice to all Citizens
Or
"Yes, I am a LL" then launch into Portia's 'do we not bleed' speech from The Merchant of Venice.

Mars Mug
22-12-2011, 23:47 PM
If the CAB is a registered charity then to refuse advice in that way could be a breach of their charitable status.

http://www.citizensadvice.org.uk/index/aboutus/factsheets/how_funded.htm

bhaal
23-12-2011, 00:37 AM
That's nice that is. So what are we landlords then? Sub-citizens!

Landlords are on the whole people with enough money to afford a solicitor. The CAB is not intended to be a complete replacement for the legal profession.

mariner
23-12-2011, 00:51 AM
Landlords are on the whole people with enough money to afford a solicitor.

Not based on evidence of some LL posts here & elsewhere.
Based on the Benefit Cheats documentary, some Ts have much more disposable, undeclared income

Darth Wookie
23-12-2011, 10:07 AM
Landlords are on the whole people with enough money to afford a solicitor. The CAB is not intended to be a complete replacement for the legal profession.

And what planet does Bhaal inhabit where landlords have bottomless reserves. I've yet to meet a LL that hasn't been stung by a bad tenant at some point.

westminster
24-12-2011, 10:13 AM
The deposit is not in a TDS as I live in the same property/house. I was of the understanding that I did not need one as there are 2 flats in the same house.

The tenant is requesting the certificate for above but I do not have one.

I have been advised since that I possibly am not correct, the property is a semi detached house, I live in the bottom flat and the tenants live in the upstairs flat.

What should I do, and am I correct or not ?
If the house is a conversion, not purpose built flats, then you are correct. The tenant does not have an assured [shorthold] tenancy because you are classed as a resident landlord under paragraph 10 of Schedule 1 (Tenancies which cannot be assured tenancies), Housing Act 1988. Link:http://www.legislation.gov.uk/ukpga/1988/50/schedule/1

Therefore, deposit protection does not apply. Nor does Housing Act 1988 (therefore, you can't serve a s.21 notice).

westminster
24-12-2011, 10:38 AM
I have tenants due to vacate property on the 8th January, notice was given and they agreed in writing that they would move out. ...

I have also advised that upon them moving out, I would carry out a property inspection and their deposit would be returned to them subject to any damages found. Within 14 days.

...They have also advised me in writing that if their deposit is not given to them in full on the day they move out they will not give me the keys back.
The fixed term expires on 8th January 2012?

That being the case, (and assuming the flats are NOT purpose built), the tenancy ends on that date, and if T remains in occupation beyond that date, no 'statutory periodic tenancy' will arise to replace the expired contract (as it would under s.5 HA1988, if it were an AST). The T becomes a trespasser, (unless you continue to demand/accept rent, because you would arguably grant a new, oral, tenancy by doing so).

Protection from Eviction Act 1977 still applies, so you'd need to apply for and obtain a court order for possession, in order to evict the trespasser.

If the ex-T, now trespasser, tries to make a payment, make it clear, in writing, that you are treating the payment as 'mesne profits', see this link (http://www.landlordlawblog.co.uk/2010/09/25/mesne-profits-what-is-it/).

If the T does vacate on 8th January but fails to return the keys, change the locks and deduct the cost from the deposit.

Lawcruncher
26-12-2011, 18:05 PM
If the ex-T, now trespasser, tries to make a payment, make it clear, in writing, that you are treating the payment as 'mesne profits', see this link (http://www.landlordlawblog.co.uk/2010/09/25/mesne-profits-what-is-it/).

If a tenant remains in occupation and you wish to maintain that the tenancy has come to an end it is unwise to demand or accept rent in respect of any period after the date you maintain the tenancy ended. Using the phrase "mesne profits" will not save you if you otherwise get it wrong.

mind the gap
26-12-2011, 19:22 PM
And what planet does Bhaal inhabit where landlords have bottomless reserves. I've yet to meet a LL that hasn't been stung by a bad tenant at some point.

No; 'enough money to pay a solicitor' is not the same as 'bottomless reserves'.

I agree with bhaal, actually. In principle, the CAB exists to advise people as citiziens, not as businesses. A LL would be asking for business advice, effectively. He should really build in that cost to his business plan, not expect it for free...except on forums such as this.

westminster
27-12-2011, 21:06 PM
If a tenant remains in occupation and you wish to maintain that the tenancy has come to an end it is unwise to demand or accept rent in respect of any period after the date you maintain the tenancy ended. Using the phrase "mesne profits" will not save you if you otherwise get it wrong.
I did not advise demanding mesne profits, merely to treat any payment received as such.

As Tessa says in the link, the terms "is most commonly used for payments made after a court order for possession has been made against the tenant."

She goes on to say:

"The other important use, is where something has happened to end a tenancy...


...The landlord will not want to prejudice his right to recover possession in those circumstances, so the tenant will be told that any payments received will be accepted as mesne profits, and should not be taken as an intention to create a new tenancy."

Given that it's not always the case that LL is presented with a wad of cash by the T and that payments might often be made electronically over the banking system without the express agreement of the LL, I don't see it as risky to advise the T that the payment has been treated as mesne profits.

Or do you advise instead returning any payment electronically received?

jjlandlord
27-12-2011, 21:19 PM
I think one key thing re. mesne profits is not to demand (or accept) anything in advance since that could easily be construed as demanding rent in exchange of permission to occupy.
So if payment is accepted, or demanded, best to do it in arrear to cover a period during wich the property was occupied without permission.

E.g. if ex-T sends LL a money transfer for a month-worth of rent in advance, imo it'd be very risky for the LL to accept it without in effect creating a tenancy (after all it in effect means that ex-T has now permission to remain).
Imo, best way for LL to deal with that would be to return money paid in advance ASAP with a letter stating that he cannot accept such payments but that he may seek mesne profits payment for each further day that ex-T remains in occupation.
It might be safest to wait until possession has been recovered to go after ex-T for this.

westminster
27-12-2011, 21:38 PM
I think one key thing re. mesne profits is not to demand (or accept) anything in advance since that could easily be construed as demanding rent in exchange of permission to occupy.
I quite agree. However, more key in OP's situation is that the tenancy would appear to be outside Housing Act 1988.

jjlandlord
27-12-2011, 21:54 PM
However, more key in OP's situation is that the tenancy would appear to be outside Housing Act 1988.

Yes, it is key. But it does not change the fact that, once the tenancy has ended, accepting any payment made in advance would be very risky.

Darth Wookie
28-12-2011, 08:20 AM
No; 'enough money to pay a solicitor' is not the same as 'bottomless reserves'.

I agree with bhaal, actually. In principle, the CAB exists to advise people as citiziens, not as businesses. A LL would be asking for business advice, effectively. He should really build in that cost to his business plan, not expect it for free...except on forums such as this.
I can see both sides of the argument, but firmly believe that CAB is not just for supporting the tenants. Whether an employee or business owner (of any size), it's fundamentally about generating an income to support you and your family. Business owners/landlords are entitled to be paid for the service they provide and where a tenant abuses that relationship then the business, and subsequently the employees, suffers. By not supporting the LL, CAB is only setting up another citizen to fail, as well as condoning the increasing debt of the tenant.
I spend quite a bit of time working in partnership with CAB volunteers and advisers who are firmly of the above opinion.
As far as building solicitors costs into a business plan, that's all very well in theory, but as we all know, solicitors costs can increase on a logarithmic scale dependant on time. I've seen cases go through (largely dealing with ASB) which have cost more than the annual property rental, but still needed pursued for the sake of the community. These costs can never realistically be recouped by the LL as the worst offenders have no means to pay.

Lawcruncher
28-12-2011, 09:43 AM
Or do you advise instead returning any payment electronically received?

If you wish to be certain of avoiding problems, then yes.

Where a tenant remains in occupation after the tenancy has come to an end the situation is similar to that where a (prospective ) tenant goes into occupation without terms being agreed. Except in family situations, that rarely happens with residential property, but is all too common with commercial property. The situation needs to be looked at as a whole to determine if there is a tenancy. The question is not whether the tenant has exclusive occupation, but rather whether there has been an agreement as to certainty of duration of the occupation.

If a tenant is holding over and pays a sum equal to one month's rent there has to be a risk that accepting it means that you concede he is going to be there for a fixed period and that has all the hallmarks of a tenancy. I am not sure that accepting payment in arrear is necessarily any better.

It is all likely to come down to a combination of what the parties have said to each other and what they actually do.