Advance Rent or Deposit?? Letting Agent from Hell!

whatdowedonext

Hello All,

Hope someone can point us in the right direction. Having had our home repossessed in 2008 we have been renting ever since. To get our 1st rental with no decent credit history we paid 6 months up front. After 6 months we were allowed to go to 3 mths up front. Now two years down the line and having moved once our Letting Agent would only allow us to stay on in the property if we paid in addition to the monthly rent a further two months rent. He called this an additional deposit that represented 2 months advance rent and was to be held by him in favour of the landlord as a security against any rent arrears and in addition to the existing deposit held for damages etc.

We have decided to downsize and cut our rental payments, we are going with another agent and landlord. We have given our notice to move out at the end of September and requested the advance rent be used to pay the remaining rent due. We are not asking to touch the damages deposit as this is held with the TDS.

They have flatly refused and become very rude and dismissive. Is this legal? Surely if it's a deposit held to make sure we pay the rent it should be held independently, not creating interest for the Letting Agent?

It's put a real spanner in the works as we are trying to do the right thing and go to a property that's cheaper so if anything happens re jobs etc we can cope. Without our advance rent we cannot secure the new property!!!

Hope someone can shed some light on this matter

L x

N79

The OP's post is not very clear. Am I right in thinking that there is a deposit held by the DPS plus the 2 months rent "in advance" held by the agent (very stupidly - this tenancy now almost certainly has a premium). If so then the last 2 months rent is already paid (ie you can use the rent in advance).

That is the price the LA pays for trying to dodge the TDS requirements.

If there is only a TDS deposit then you should pay all of your rent until the day tenancy ends.

TwistedPsycho

N79 wrote: »

Am I right in thinking that there is a deposit held by the DPS plus the 2 months rent "in advance" held by the agent

Thats how I read it; a protected deposit AND 2 months rent in advance (to protect against rent shortfalls)

whatdowedonext

Hi all

Yes there is a £1000.00 deposit held for damages etc by the TDS scheme and a further £2000 held by the Letting Agent as forward rent.

bitsandpieces

I'd ask the agent in writing to confirm what this money is and what they're going to do with it. If it's a deposit then (assuming you're in England or Wales and on an AST) they should have protected it and you can take them to court for not having done so. If it's rent in advance, then surely you've already paid your last two months' rent.

I guess the agent might try to argue that this is rent in advance in case you stay after you're meant to leave, but I suspect they would struggle with that one.

theartfullodger

Yes there is a £1000.00 deposit held for damages etc by the TDS scheme and a further £2000 held by the Letting Agent as forward rent.

Hmmnnn... I think the Agent is holding £3000 deposit...

Deposits (we are talking England - please confirm) are governed by the Housing Act 2004.

Section 212(8) states...

“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—
(a) the performance of any obligations of the tenant, or
(b) the discharge of any liability of his, arising under or in connection with the tenancy.

(see
http://www.opsi.gov.uk/acts/acts2004/ukpga_20040034_en_19#pt6-ch4-l1g212
)

So I fear whatdowedonext & the agent have both got a problem...

The agent has a problem because he, although he claims the £2000 is "forward rent" would be found (I'm pretty d**n sure) but any court to be holding the £2000 as deposit... - so Tenant could sue Agent/Landlord for 3xdeposit (£9k!!!) - but sadly won't suceed as
i) If he did it will take months & money &
ii) Agent can get out of the problem by registering the £2000..

The tenant has a problem as, because if I am right all of the £3000 should be treated as deposit, regulations on how deposit is held (read the rest of the act, it's riveting stuff...) mean agent/landlord can't use "deposit" to pay rent...

Anyone else disagree??

Cheers!

Lodger

N79

theartfullodger wrote: »

The tenant has a problem as, because if I am right all of the £3000 should be treated as deposit, regulations on how deposit is held (read the rest of the act, it's riveting stuff...) mean agent/landlord can't use "deposit" to pay rent...

Anyone else disagree??

Cheers!

Lodger

I agree but the problem is much worse than that for the LL. A solution to the problem if the LA/LL insist on using the extra 2000 as a deposit would be point out that it would then count as a premium. Point out that at this point you will be happy for it to be used as the last two months rent instead. Only a suicidal LL would do anything but jump at this offer.

whatdowedonext

Hi

Yes we do live in England, thanks for all the responses even if we don't get the advanced rent back before we vacate I feel a lot better about the situation. Perhaps satisfied that we have stood up to LA, unsure if we can take it anywhere though so need to put my thinking cap on to get funds!

Thanks everyone

L & R x

whatdowedonext

N79 wrote: »

I agree with artful but a solution to the problem if the LA/LL insist on using the extra 2000 as a deposit would be point out that it would then count as a premium. Point out that at this point you will be happy for it to be used as the last two months rent instead. Only a suicidal LL would do anything but jump at this offer.

We offered to do this and it was point blank refused by the LL & LA who are determined to hold on to it until we vacate having paid all rent up to date before we leave. This LA has a charges list two pages long!

N79

whatdowedonext wrote: »

We offered to do this and it was point blank refused by the LL & LA who are determined to hold on to it until we vacate having paid all rent up to date before we leave. This LA has a charges list two pages long!

Then tell the LL that you are going to assign your tenancy to the 4 biggest, axe wielding, house trashing thugs that you can find. When they say that you can't point out to them that if they want a premium for the tenancy then they have to take the consequences. Hopefully they will run to their lawyers who will put them straight.

(Reason - a premium removes the implied term that forbids the right of assignment without the LL's consent. Its a little more complicated than this as there are some rules from very old LL and T acts which would then apply but thats the basic gist and it serves as a good threat to let them know that you are serious.)

This sort of LL makes me mad.

theartfullodger

Well done whatdowedonext for what you've been doing, for standing up to the little t*** & for asking for advice here.,.. These Agents/Landlords are a disgrace & need a good kicking (no, don't..)

Cheers!

Lodger
(Landlord since 2000)