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

DD4

DVardysShadow wrote: »

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.

The tenant and letting agent cancelled the contract amicably and with the agreement that the tenant would pay rent upto the end of the contract period, unless the letting agent found an alternative tenant. An alternative tenant was found and so the OP didn't have to pay out the contract.

The letting agent isn't keeping the overpayment as compensation for breaking the contract, because the contract wasn't broken. They are keeping it to offset the damages. If they were keeping the money because the tenant broke the contract then they would have said so.

I think you should re-read the OP's original (and subsequent) posts as I believe you are getting confused.

OP: The magistrates at the small claims court are quite bright and the case is hardly complex. You paid a deposit for £x and a rental overpayment of £y, both of which the letting agent is keeping to pay for 'damages'. If you prove that the damages are bogus then the judge will award you your deposit for £x back and the overpayment for £y back. Simples.

ahrimaniac

'OP: The magistrates at the small claims court are quite bright and the case is hardly complex. You paid a deposit for £x and a rental overpayment of £y, both of which the letting agent is keeping to pay for 'damages'. If you prove that the damages are bogus then the judge will award you your deposit for £x back and the overpayment for £y back. Simples.'

How do I start the ball rolling and get this into courts?

DD4

ahrimaniac wrote: »

How do I start the ball rolling and get this into courts?

http://www.adviceguide.org.uk/index/your_rights/legal_system/small_claims.htm

ahrimaniac

Thank you - I just had verbal confirmation that they are keeping hold of the rent. Hmm.

DVardysShadow

DD4 wrote: »

The tenant and letting agent cancelled the contract amicably and with the agreement that the tenant would pay rent upto the end of the contract period,

Agreed

unless the letting agent found an alternative tenant. An alternative tenant was found and so the OP didn't have to pay out the contract.

OP does not say this, plus would have considerable difficulty proving it, unless it is in writing

The letting agent isn't keeping the overpayment as compensation for breaking the contract, because the contract wasn't broken. They are keeping it to offset the damages. If they were keeping the money because the tenant broke the contract then they would have said so.

As far as it goes, the original contract was broken by mutual agreement. Now the problem comes in establishing further variations to the original agreement

I think you should re-read the OP's original (and subsequent) posts as I believe you are getting confused.

No need to re-read, I did it successfully first time, but thanks for your concern on this point. Think what you like, I am quite clear about what will stand up. This not so much about what the OP perceives the facts to be, but about what the OP can establish was the basis of agreement for release from the contract and what he could establish in court

OP: The magistrates at the small claims court are quite bright and the case is hardly complex.

Magistrates? In the small claims court? Magistrates? Is there something we don't know about the small claims court?

You paid a deposit for £x and a rental overpayment of £y, both of which the letting agent is keeping to pay for 'damages'. If you prove that the damages are bogus then the judge will award you your deposit for £x back and the overpayment for £y back.

First basis of claim: Deposit was provided against damage beyond fair wear and tear, Damage claimed is actually for dilapidations which are Fair Wear and Tear.

Second basis of claim: Month's rent is returnable as other occupiers found within month. Defence: LL could have insisted that Contract continue to term, mutually agreed to terminate for 1 months' rent. Tenant relinquished property by handing back keys and no refund agreed.

First Counterclaim: Damages exceed deposit. Judgement requested for difference between deposit and damages.

Second Counterclaim: Agreement to terminate for 1 month's rent is exclusive of period of occupation from effective date of notice. Judgement requested for occupation beyond date of notice

If OP only goes with first claim and manages to uphold that the damages claimed are not justified, then he will win and get his deposit back.

But if OP adds second claim, firstly the defence will probably be upheld in the absence of evidence that the agreement to terminate was on the basis of anything than month's rent in lieu of notice - AND there is a risk that the 2 counterclaims may be made and upheld

Simples.

If only. You think that what you are arguing is fair, and from the OP's perspective it may be. But from the LL's point of view, the counterclaims may also be fair. I think that the likely outcome is that OP's first claim would be upheld as would both of LL's counterclaims. The problem is that the OP's second claim is weak compared to LL's counterclaims and would probably lose. Further. for OP to make second claim would invite LL to make the counterclaims. Not a good position to make a claim which might not be upheld and invite 2 counterclaims which probably would be upheld. Plus making the claims would make OP look greedy ad detract from his first claim.

Simples.

:rolleyes::rolleyes::rolleyes: OK, if it makes you feel better. But it does involve making a very weak claim which could invite stronger counterclaims risk inviting claims against the OP

DD4

Sorry OP, there are all sorts of cranks on these internet forums. Better to just ignore them. :rolleyes:

Good luck with getting ALL of your money back.

DVardysShadow

DD4 wrote: »

Sorry OP, there are all sorts of cranks on these internet forums. Better to just ignore them. :rolleyes:

Name some cranks on this forum. Go on, be specific.

ahrimaniac

Can I just jump back in and say thank you to DVardysShadow, and all the others, for their help so far.