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  • FIRST POST
    • Rjones1188
    • By Rjones1188 10th Mar 17, 5:20 PM
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    Rjones1188
    Deposit after tenant dies
    • #1
    • 10th Mar 17, 5:20 PM
    Deposit after tenant dies 10th Mar 17 at 5:20 PM
    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.
Page 1
    • MyOnlyPost
    • By MyOnlyPost 10th Mar 17, 5:32 PM
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    MyOnlyPost
    • #2
    • 10th Mar 17, 5:32 PM
    • #2
    • 10th Mar 17, 5:32 PM
    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
    It may sometimes seem like I can't spell, I can, I just can't type
    • Rjones1188
    • By Rjones1188 10th Mar 17, 5:51 PM
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    Rjones1188
    • #3
    • 10th Mar 17, 5:51 PM
    • #3
    • 10th Mar 17, 5:51 PM
    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
    • By AdrianC 10th Mar 17, 5:58 PM
    • 13,204 Posts
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    AdrianC
    • #4
    • 10th Mar 17, 5:58 PM
    • #4
    • 10th Mar 17, 5:58 PM
    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?
    Originally posted by Rjones1188
    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.
    • Rjones1188
    • By Rjones1188 10th Mar 17, 6:03 PM
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    Rjones1188
    • #5
    • 10th Mar 17, 6:03 PM
    • #5
    • 10th Mar 17, 6:03 PM
    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.
    Originally posted by AdrianC
    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
    • By Guest101 10th Mar 17, 6:10 PM
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    Guest101
    • #6
    • 10th Mar 17, 6:10 PM
    • #6
    • 10th Mar 17, 6:10 PM
    Legally she can claim the full rent until July from his estate. Apologies not what you want to hear and condolences
    • Rjones1188
    • By Rjones1188 10th Mar 17, 6:22 PM
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    Rjones1188
    • #7
    • 10th Mar 17, 6:22 PM
    • #7
    • 10th Mar 17, 6:22 PM
    Legally she can claim the full rent until July from his estate. Apologies not what you want to hear and condolences
    Originally posted by Guest101
    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
    • By AdrianC 10th Mar 17, 6:26 PM
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    AdrianC
    • #8
    • 10th Mar 17, 6:26 PM
    • #8
    • 10th Mar 17, 6:26 PM
    We are quite happy for the landlord to retain what she is entitled to of the deposit, but no more.
    Originally posted by Rjones1188
    Let the protection service decide that.

    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)?
    Originally posted by Rjones1188
    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
    • By MyOnlyPost 10th Mar 17, 6:36 PM
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    MyOnlyPost
    • #9
    • 10th Mar 17, 6:36 PM
    • #9
    • 10th Mar 17, 6:36 PM
    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.
    It may sometimes seem like I can't spell, I can, I just can't type
    • Rjones1188
    • By Rjones1188 10th Mar 17, 6:46 PM
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    Rjones1188
    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
    • By leslieknope 10th Mar 17, 7:05 PM
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    leslieknope
    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.
    CCCC #33: £42/£240
    DFW: £4355/£4405
    • Guest101
    • By Guest101 11th Mar 17, 9:23 AM
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    Guest101
    I think you're misreading the clause.

    That's the fee to end the tenancy. But rent being due until new tenant moves in is common.
    • cjdavies
    • By cjdavies 11th Mar 17, 11:16 AM
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    cjdavies
    Am I right in thinking that since the rent is being paid, you are still entitled to keep the keys and enter the house to clean etc.
    • AnotherJoe
    • By AnotherJoe 11th Mar 17, 2:32 PM
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    AnotherJoe
    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.
    Originally posted by Rjones1188
    I think best case, you could argue that if the LL was able to relet the flat prior to the end of the tenancy, then that would mitigate the LL's losses and rent wouldn't be due until the statutory end of the tenancy but only until the new tenant comes in.
    • t0rt0ise
    • By t0rt0ise 11th Mar 17, 5:16 PM
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    t0rt0ise
    The notice thing is a red herring. It sounds as though the landlord didn't know what they were doing and said they'd accept notice and then looked it up and found that in fact they simply relet and charge rent until it lets. The adjudicator will have to decide whether the acceptance of notice trumps the usual rule.
    • Contessa
    • By Contessa 11th Mar 17, 6:54 PM
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    Contessa
    I don't have the knowledge to give informaion or advice about this. All I can do is to send you my condolences and sympathy.
    • Guest101
    • By Guest101 13th Mar 17, 8:38 AM
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    Guest101
    I think best case, you could argue that if the LL was able to relet the flat prior to the end of the tenancy, then that would mitigate the LL's losses and rent wouldn't be due until the statutory end of the tenancy but only until the new tenant comes in.
    Originally posted by AnotherJoe


    Rent is a debt and therefore no obligation to mititgate, as no loss
    • booksurr
    • By booksurr 13th Mar 17, 11:01 AM
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    booksurr
    Rent is a debt and therefore no obligation to mititgate, as no loss
    Originally posted by Guest101
    agreed

    but neither can rent be taken for the same period from two different parties, so if relet to a new tenant, then the old tenant's deposit cannot be applied to a period's rent covered by the new tenant
    • Guest101
    • By Guest101 13th Mar 17, 11:08 AM
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    Guest101
    agreed

    but neither can rent be taken for the same period from two different parties, so if relet to a new tenant, then the old tenant's deposit cannot be applied to a period's rent covered by the new tenant
    Originally posted by booksurr


    I think there is often a confusion with this.


    it's impossible to rent the same property for the same period twice.


    Often the solution is outgoing tenant pays until incoming tenant moves in.


    The LL can in essence set whatever conditions they want to end a tenancy early.


    However sometimes the LL may simply say pay me £X to terminate the lease. Now X can be anything, millions if that's what the LL wants (obviously no-one is going to pay that)
    • always_sunny
    • By always_sunny 13th Mar 17, 11:35 AM
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    always_sunny
    it's very sad circumstances however passing away does not extinguish debts by default and still need to be addressed.

    A signed AST on 09/07/16 would need to be paid till 08/07/17 from his estate. Even with a break clause, there is still 2 month notice so earlier release is March 17.

    What would you do if you were the LL? S/he may not have the extra cash to be sympathetic .
    Hopefully the LL will not charge you even more. I assume the flat needs to cleaned, etc before it can be relet.
    Expat here with an EU passport.
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