Can a lettings agency use overpayment of rent to bolster damage deposit?

ahrimaniac

We have vacated our flat and moved into another, and this has come up. I'm posting it on here as well as consumeractiongroup - so forgive me if anyone has read this twice!

We have had our damage list back - all of which is highly questionable -and they are wanting to take a ridiculous amount of money from us for various things, all of which I have proof was like that before the property was let and/or has failed (a mattress whose stitching has come away from the seam, for one).

Before I checked out, they demanded I pay for the rent for the month ahead, as I had broken tenancy early (though this was all agreed amicably, so fair enough). I paid the rent (as per the agreement - we pay the rent up until the point our tenancy ended or they had a new tenant).

Turns out they had tenants lined up, so I actually ended up overpaying by two weeks worth of rent.

They are now keeping that money and saying that it is being combined with the damage deposit in order to pay for all the damages.

Is this fair? Surely the rent should be kept seperate - an overpayment is exactly that?

DVardysShadow

If the damage wipes out your deposit and eats into the overpayment, what do you expect them to do? Repay the overpayment, then ask you for the excess? Would you not think that they would be entitled to sue? This would be the wrong principle on which to base your claim. In any case, they are entitled to the money under contract, so actually they would be entitled to keep this money and then pursue you for the shortfall on the deposit, so they are actually doing you a favour.

The only principle you have any comeback on is that deductions shall be reasonable reimbursement for putting right damage beyond fair wear and tear. Make your claim on that basis.

The only principle would be that

DD4

If you have good evidence that the damages claim is bogus, lodge a complaint in the Small Claims court to get your deposit and overpayment back. It's a simple process, you don't need a solicitor and usually the opposition crumbles before it gets that far.

DVardysShadow

DD4 wrote: »

If you have good evidence that the damages claim is bogus, lodge a complaint in the Small Claims court to get your deposit and overpayment back. It's a simple process, you don't need a solicitor and usually the opposition crumbles before it gets that far.

The over payment is unlikely to be something they will crumble over. They would argue that it is reasonable recompense for allowing the tenancy to lapse before term.

DD4

The OP paid up the rent for the whole tenancy....

ahrimaniac

I should clarify a few things here.

We agreed with the landlord to break the tenancy early - with the condition that we would continue paying the rent up until the point a new tenant moved in, which we duly did.

As they moved in during the middle of a month, we ended up overpaying the rent by quite a sum. We were told there and then the rent would be refunded immediately, but this is not the case.

They are using this overpayment to bolster the amount 'in the kitty' to claim damages from. Now, all the damages are bogus and I'll be fighting these - easily - in court.

My question isn't what to do re: the damage deposit process - but simply:

Can the lettings agency keep this overpayment of rent - which had nothing to do with the damage deposit - and use it to bolster the damage deposit - because my thought is that it is rent and nothing more.

Thanks for your help so far though!

ahrimaniac

And: I owe absolutely no rent. I have paid every month on time without fail and there is no shortfall on the rent. They are taking advantage of the fact that I overpaid.

DVardysShadow

DD4 wrote: »

The OP paid up the rent for the whole tenancy....

No, it was for the month ahead

DD4

The OP agreed to pay upto the end of the tenancy or until the landlord found a tenant, which he did. There are therefore no reasons for the letting agent to withhold monies based on "recompense for allowing the tenancy to lapse before term."

To the OP: The letting agent has taken the money, regardless of whether you feel that can or not. Your only way of redress is to try and get your money back via the courts.

DVardysShadow

ahrimaniac wrote: »

Now, all the damages are bogus and I'll be fighting these - easily - in court.

No problem there

My question isn't what to do re: the damage deposit process - but simply:

Can the lettings agency keep this overpayment of rent - which had nothing to do with the damage deposit - and use it to bolster the damage deposit - because my thought is that it is rent and nothing more.

Would not go there. If it goes to court, it will cloud the very clear issues over damages and make you look money grabbing, which would prejudice your sound claims over the deposit. Or in the hands of the opposition lawyer it would.

The overpayment was because you broke the contract. Without that overpayment, you would not have been released from the tenancy, so there is no basis to claim on. You could have held on to the keys until the rent was expired, but you chose not to.

ahrimaniac

'The overpayment was because you broke the contract. Without that overpayment, you would not have been released from the tenancy, so there is no basis to claim on. You could have held on to the keys until the rent was expired, but you chose not to.'

A valid point, but, if I had done so, then the new tenant would not have been able to move in. They encouraged me to pay the rent ahead, and told me the money would be refunded immediately, and now have done an about-turn and changed the game.

'The overpayment was because you broke the contract.'

I didn't break the contract though - the contract was amended to say we would pay up until the point they had a new tenant, and then any rent money would be refunded back to me. I paid, they kept the money and have squirrelled it elsewhere...

I agree that it could cloud the waters re: damage deposit but that's part of the reason I want the rent money back - so that I can go after the damage deposit, solely.

Thank you for all your help mind - I'm just trying to get a handle on this!