Deposit after tenant dies

[Deleted User] · 10 March 2017 at 7:20PM

Hello everyone

My brother committed suicide at the end of October 2016 aged 30. He had signed a 12 month Assured Shorthold Tenancy on 9th July 2016. He left no will.

After he died we contacted the landlord. She was quite unhelpful and insensitive and just wanted to make sure she got her money. Fair enough but a bit of compassion wouldn't go amiss. She asked for a month's notice and we served this before 8 December 16 and said we would vacate by 8 January 17. When she acknowledged receipt of notice she asked for bank details to repay the deposit. My Mum paid the rent for the period to 8 January (it took us a long time to clear all the furniture from the flat).

We asked for the deposit back in early February but the landlord said she wouldn't refund any of it as she wouldn't get a new tenant in until mid February and had incurred costs in arranging a new tenancy. She is essentially keeping the month and a half deposit to cover the period the property was empty.

We are lodging a dispute with the deposit protection service as we don't believe she is allowed to keep the whole of the deposit because it took her too long to get a tenant in. She accepted notice so surely it's not our problem that she didn't get a tenant quickly. What's the point in giving notice otherwise? I'm not sure whether it's relevant since my brother died but there is a clause in the tenancy agreement that says:

"The tenant agrees to....Pay for the landlord's costs in the re-letting of the property if the Tenant terminates the Agreement prior to the end of the fixed term or without the correct use of a valid notice. The Landlord's agreement to end the Tenancy shall not exempt the Tenant from this clause. The fee to be charged will be based on 10% of the monthly rent for the pro rata period remaining of the Tenancy".

Based on that, if this clause is in point, we would have to pay £900 * 6 months * 10% = £540 vs the £1350 deposit she's kept. Even though my brother did not terminate the tenancy, he died, is this clause still in point? We will be applying for grant of administration but don't have it yet. However, my Mum, as Next of kin, terminated the tenancy early, so is this clause relevant?

Some further research leads me to believe she hasn't followed the correct procedure when a tenant dies intestate. The gov.uk website says the landlord has to serve notice to personal representatives (not the other way around) and apply to the Public Trustee to reclaim the property. She hasn't done that as far as I'm aware. What the gov.uk website doesn't say is what happens to the rent for the outstanding term. As far as I can tell, as she hasn't reclaimed the property from the Public Trustee she hasn't legally got the right to re-let the property to the new tenants. Can we report her to someone for this?

Any advice or guidance would be welcome, but we're going to lodge a dispute and go through the resolution process anyway and see what they say. It would be good to get a feel for how likely we are to get any money back.

Thanks in advance.

MyOnlyPost · 10 March 2017 at 7:32PM

I think this will be quite a rare occurence and so a forum may not be the best place to get help. I would imagine you are going to need advice from CAB, shelter or a solicitor to find your answers.

My only advice is that whilst you are quite understandably emotional about this, the landlord will be quite dispassionate (that is no excuse for lack of empathy though). You need to try to keep things rational and not allow emotion to cloud your judgement.

I hope that someone else can come along to help who maybe has some experience to draw on

[Deleted User] · 10 March 2017 at 7:51PM

Thank you. I think we will just accept the decision of the Alternative Dispute Resolution service rather than involve a solicitor. The cost of that could escalate quickly! My mother was just going to let it go but I don't see why the landlord should get to keep the money unchallenged. I think I am remaining quite rational and have scoured the tenancy agreement to see which clause she is relying on and can't find it.

We may not get anywhere but it's worth a go.

AdrianC · 10 March 2017 at 7:58PM

Deleted_User wrote: »

Hello everyone

My brother committed suicide at the end of October 2016 aged 30. He had signed a 12 month Assured Shorthold Tenancy on 9th July 2016.

She asked for a month's notice and we served this before 8 December 16 and said we would vacate by 8 January 17. When she acknowledged receipt of notice she asked for bank details to repay the deposit. My Mum paid the rent for the period to 8 January

We asked for the deposit back in early February but the landlord said she wouldn't refund any of it as she wouldn't get a new tenant in until mid February and had incurred costs in arranging a new tenancy. She is essentially keeping the month and a half deposit to cover the period the property was empty.

We are lodging a dispute with the deposit protection service as we don't believe she is allowed to keep the whole of the deposit because it took her too long to get a tenant in. She accepted notice so surely it's not our problem that she didn't get a tenant quickly. What's the point in giving notice otherwise? I'm not sure whether it's relevant since my brother died but there is a clause in the tenancy agreement that says:

"The tenant agrees to....Pay for the landlord's costs in the re-letting of the property if the Tenant terminates the Agreement prior to the end of the fixed term or without the correct use of a valid notice. The Landlord's agreement to end the Tenancy shall not exempt the Tenant from this clause. The fee to be charged will be based on 10% of the monthly rent for the pro rata period remaining of the Tenancy".

Based on that, if this clause is in point, we would have to pay £900 * 6 months * 10% = £540 vs the £1350 deposit she's kept. Even though my brother did not terminate the tenancy, he died, is this clause still in point?

Yes, it is. His personal estate is liable for his debts, to the full extent of his assets and no further. Those debts must be settled before any assets can be distributed.

His deposit is an asset of his estate. He was legally tied to the contract of his tenancy, and any monies he owes under that are a debt of his estate.

But you're right - it's down to the deposit protection service used to decide what's appropriate for the landlord to retain. Register a dispute.

Some further research leads me to believe she hasn't followed the correct procedure when a tenant dies intestate.

His intestacy is not his creditors' problem. Intestacy merely means that he didn't express any wishes as to where his estate should be distributed, so it follows a legally-defined path. Assuming he was unmarried, with no children, in England/Wales - the parents inherit.
https://www.gov.uk/inherits-someone-dies-without-will

The gov.uk website says the landlord has to serve notice to personal representatives (not the other way around) and apply to the Public Trustee to reclaim the property. She hasn't done that as far as I'm aware. What the gov.uk website doesn't say is what happens to the rent for the outstanding term. As far as I can tell, as she hasn't reclaimed the property from the Public Trustee she hasn't legally got the right to re-let the property to the new tenants. Can we report her to someone for this?

You need to make a decision - is his estate retaining the tenancy (in which case, rent needs to be paid), or is the tenancy being surrendered the cheapest and easiest way possible.

Yes, it would be compassionate of the landlord to waive any fees in the circumstances, but remember that this is purely a business relationship for them.

[Deleted User] · 10 March 2017 at 8:03PM

AdrianC wrote: »

You need to make a decision - is his estate retaining the tenancy (in which case, rent needs to be paid), or is the tenancy being surrendered the cheapest and easiest way possible.

Yes, it would be compassionate of the landlord to waive any fees in the circumstances, but remember that this is purely a business relationship for them.

We have already handed back the keys and ended the tenancy as far as we're concerned.

We are quite happy for the landlord to retain what she is entitled to of the deposit, but no more. My understanding of it is that she is keeping more than the terms allow when the tenancy ends before the end of the fixed term. (The £540 vs £1350 I referred to in my post).

Guest101 · 10 March 2017 at 8:10PM

Legally she can claim the full rent until July from his estate. Apologies not what you want to hear and condolences

[Deleted User] · 10 March 2017 at 8:22PM

Guest101 wrote: »

Legally she can claim the full rent until July from his estate. Apologies not what you want to hear and condolences

So what's the point of the clause about terminating the Agreement prior to the end if the fixed term (the one I quoted in my post)? The landlord agreed to end the tenancy so surely we shouldn't be liable for more than the 10% of the remaining rent?

AdrianC · 10 March 2017 at 8:26PM

Deleted_User wrote: »

We are quite happy for the landlord to retain what she is entitled to of the deposit, but no more.

Let the protection service decide that.

Deleted_User wrote: »

So what's the point of the clause about terminating the Agreement prior to the end if the fixed term (the one I quoted in my post)?

That's not common in ASTs. Normally, there's no break until the end of the fixed period, except at the landlord's discretion.

The landlord agreed to end the tenancy so surely we shouldn't be liable for more than the 10% of the remaining rent?

From what you've said, you're right. But if the landlord won't accept that, then you need to take it to the dispute service.

MyOnlyPost · 10 March 2017 at 8:36PM

It largely depends how things were done. If this was all verbal then it's a case of he said she said. If both parties agreed in writing to a mutual surrender of the tenancy then you are protected. If your mum simply gave notice this isn't the same as a mutual surrender, what did the landlady give you in return when notice was given?

As for the clause you mention, notice was served (by your mum) so that should be sufficient, so you are correct that based on that £540 should be the maximum claim, again assuming the notice was served correclty.

[Deleted User] · 10 March 2017 at 8:46PM

The correspondence was all done by email or letter.

My Mum wrote a letter and sent it in the post to give 1 month notice, enclosing the cheque for the final month's rent at the same time. The landlady replied by email thanking her for the cheque and asking for the various keys back. She then said on receipt of the keys she would arrange for the property check out to take place and in the meantime she would ask her agents to market the property. She didn't explicitly say she accepts notice to terminate the agreement but surely if she didn't accept it, she wouldn't be talking about the check out and marketing for new tenants.

Thank you to all of you for your replies. I think we'll just leave it to the dispute resolution service and accept what they say.

leslieknope · 10 March 2017 at 9:05PM

OP sorry for your loss. i don't know the answer but LL sounds missing human compassion. i understand business is business but at the end of the day we're all human.

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Deposit after tenant dies

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