Tennancy Agreement / Deposit help required

Ricamundo

My daughter is renting a flat with two others in London. They are all named on one contract. She is on a 1 year contract with a 6 month break out clause. The contract starter Late September 2008.

I have two questions, if anyone can shed some light on them please...

1. She has been told that the only way out of the contract is to find someone to replace her. She has found someone and they are going through the reference stuff at the moment. Is it right that she should have had to do this? Could she, (1 named person on the contract), have requested it to be ended after the 6 months?

2. She is told that when (and if) the new person gets into the flat, that she will have to collect her part of the deposit from the new tennant. Is this right? It seems a bit weird to me.

She has never been told and does not know what Deposit Scheme she is in. Nor does she know if she is in one.

Any help gratefully recieved.

Ric

princessamy86

Unfortunately it tends to be that all persons named on the contract have to agree to break it, but it does seem a little harsh that the onus is on your daughter to replace herself. As for the deposit, I'm fairly sure that by law landlords are required to hold tenant's deposits in a separate account. If she rented through an agent they should be able to provide details of which scheme, and a private landlord should be able to do the same. At the end of the day, it shouldn't be her problem to collect the money from the new tenant as the agreement is with the landlord. I would ask for my money back from the landlord and inform them that it is their problem to chase new tenant for money!! Hope that helps a bit, I'm sure the landlord can't just withhold her part of the deposit for that reason.

Ricamundo

Hi There princessamy86, Thank you for answering both my questions. I though that it was a bit weird asking her to collect her deposit from the person moving in. Although the new tennant has actually agreed to it, the deposit held would still be my daughters. I am trying to find information about the various deposit schemes so that I can read up on them. They dont seem to be well publicised.

tbs624

If you are on a joint & several contract contract & any of you wants to give notice correctly timed at a break clause, it can effectively give notice for the other tenants. In this case, the remaining Ts can simply get another joint T acceptable to the LL & sign up for a further Fixed Term.

What you are describing, with your daughter being obliged to find a replacement T, should only apply if there was no break clause, or if the date for using the break clause has been missed. In that case your daughter would be bound by the contract to pay rent for the balance of the Fixed Term until she could get the replacement T sorted out with the LL.

Landlords are not required to hold the T's deposit in a separate account (although it would be good practice to do so) but the deposit should be scheme-registered if paid after 6 Apr 2007 and the contract is an AST. You can check with each of the deposit schemes yourself whether a deposit is actually registered :see here.

What the LL has suggested for deposit repayment seems to be a common way for LLs to try to avoid having to “unlock” the original deposit and paying to register the new one ( if the LL is using one of the non-custodial schemes). However, in law it is your LL's responsibility to repay your tenancy deposit.

Your daughter can seek clarification via a local CAB or law centre, or by ringing Shelter 0808 800 4444.

Ricamundo

Hi TBS624, thank you for that. They have been telling her that she is not entitled to hand her notice in on her own and that she needs agreement from all parties.

I have just read the contract and there is a clause in there that she can hand in notice. The exact clause is.

"It is agreed between the parties that the Tennant shall have the right to terminate the Tennancy giving 2 (two) months advance written notice to the Agent John D Wood & Co. Lettings 22-23 Westgate Street, London. E1 7HP. The notice to be delivered as detailed in Clause 9.4 and not to take effect any earlier than 26th December 2008 and not to expire prior to 26th February 2009."

Clause 9.4 just states that if it is by hand, it will take effect the next day. 1st class mail takes effect two days later and recorded delivery takes effect upon receipt.

Does this mean that she is still within the break clause? Does it expire on 26th Feb?

As she has found a person to take her place, they have now sent her an invoice for around £90 which includes about £60 administration and a £35 referral fee.

I will be speaking to the agent today to see what is going on.

Do you think it would be worth handing her 8 weeks notice in case this swap out does not go through? Is it possible / legal to word a letter to that effect?

Robert_Sterling_3

Your daughter is almost certainly jointly and severally resposible for all the rent not just her own. In any case she has a contract. She wants to break that contract. The landlord should not suffer. Her fellow tenants should not suffer. She should find another tenant. The new tenant should become responsible for the deposit but not all of it as the daughter should not get her entire deposit refunded.

tbs624

Robert_Sterling wrote: »

Your daughter is almost certainly jointly and severally resposible for all the rent not just her own. In any case she has a contract. She wants to break that contract. The landlord should not suffer. Her fellow tenants should not suffer. She should find another tenant. The new tenant should become responsible for the deposit but not all of it as the daughter should not get her entire deposit refunded.

On a general note, read what the OP says again - there is a break clause in the contract. If any of the tenants used the break clause correctly within the specified timeframe then that brings a J&S L contract to an end for all parties.

However, see next post

tbs624

Ricamundo wrote: »

Hi TBS624, thank you for that. They have been telling her that she is not entitled to hand her notice in on her own and that she needs agreement from all parties.

I have just read the contract and there is a clause in there that she can hand in notice. The exact clause is.

"It is agreed between the parties that the Tennant shall have the right to terminate the Tennancy giving 2 (two) months advance written notice to the Agent John D Wood & Co. Lettings 22-23 Westgate Street, London. E1 7HP. The notice to be delivered as detailed in Clause 9.4 and not to take effect any earlier than 26th December 2008 and not to expire prior to 26th February 2009."

Clause 9.4 just states that if it is by hand, it will take effect the next day. 1st class mail takes effect two days later and recorded delivery takes effect upon receipt.

Does this mean that she is still within the break clause? Does it expire on 26th Feb?

To make use of the break clause it looks as though your daughter could have given her 2 months notice ( not 8 weeks) by 26th Dec, and could then have left owing nothing more on 26 Feb.The wording of that clause though is ambiguous IMHO, in that it could be read as giving 2 months notice at any time so long as the notice started on or after 26 Dec and the expiry fell on or after Feb 26.

Unfortunately, if it is viewed that the effective date to invoke the break clause has passed by, it would seem that she would therefore be liable for the balance of the Fixed Term , unless a new tenant moves in. It would still be the LL's responsibility to repay your daughter's deposit but in these circumstances your daughter could be expected to pay the fees involved in releasing the deposit and other admin costs, plus the rent until the replacement tenant moves in.

(She could of course just move out, kiss her deposit goodbye and wait for the LL or the other original tenants to pursue her to court for any further balance owing, leaving herself with ruined friendships, a possible CCJ & poor reference from the LL/LA. On a J&SL contract if one T disappears owing money the rest have to cough up but they can take action via the small claims court)

Do seek your own clarification of that wording with either the CAB or Shelter, or a local law centre.