Advance Rent or Deposit?? Letting Agent from Hell!

whatdowedonext

DVardysShadow wrote: »

Basically this does not address the question, but as such it is still useful to you.

In summary, they are saying that it is not a deposit, so they do not have to protect it and then gone on to say that they are treating it as a deposit.

Wait for the view of others but I think I would be writing along the lines of

Dear Letting Agent

I understand <your last communication> to mean that you do not understand the <£1800> to be a deposit, but by your description of its purpose and custody, the Landlord is treating it as a deposit.

We have always understood this money to be advance rent and while our rent is up to date, the money in question is indisputably ours. We instruct you that it is to be put to the rent account.

In the alternative, you are to confirm that you are holding this money as a deposit, whereupon we shall instigate proceedings for non protection of deposit.

Yours sincerely

Thank you we have sent the letter, unfortunately they are not back into the office until Tuesday. Look forward to hearing what they say to this one.

Once again thank you

R & L

whatdowedonext

Here's the letter we received this morning, your comments would be greatly appreciated.

Further to your correspondence and request for clarity as to how these monies are
held I have discussed the matter with the landlord. In particular the change of status
relating to the advance rent paid over on the change of tenancy to periodic.
As you have confirmed the monies in question were paid as advance rent. Thus your
expectation and the landlords are of the same, therein these monies were held as
rent in advance and not deposit against damages.
However the landlords refusal to use this money as rent towards the finals months of
your tenancy does technically initiate a change of status relating to how the monies
are held. We have advised the landlord accordingly who is insistent that his risks
are covered and therefore has accepted the change of status rather than use it
towards the final months of rent.
Therefore as of the 6th August the £1800 that was held as rent in advance became
deposit and has been recorded and protected accordingly. I attach the updated
deposit certificate that now shows a deposit value of £2800.
In the absence of rent in advance you will be required to pay the rent for the
remaining tenancy period.
I hope this now gives you clarity as to the position of your monies held which has
been complicated by the landlords instruction initiating the change in status.
You have intimated that you want to give notice on the property and would be writing
to us shortly to confirm this. Up until we have this notice in hand we can only

assume that you are staying in the property.

BitterAndTwisted

Good, so they've confirmed that the additional rent paid has now been lodged as a deposit. Now you pay the rent and give your notice. Then of course you absolutely need to get the property back into the same condition as at the start of the tenancy so they can't withhold any deposit monies for damage.

DVardysShadow

whatdowedonext wrote: »

here's the letter we received this morning, your comments would be greatly appreciated.

further to your correspondence and request for clarity as to how these monies are held i have discussed the matter with the landlord. In particular the change of status relating to the advance rent paid over on the change of tenancy to periodic. As you have confirmed the monies in question were paid as advance rent. Thus your expectation and the landlords are of the same, therein these monies were held as rent in advance and not deposit against damages.

However the landlords refusal to use this money as rent towards the finals months of your tenancy does technically initiate a change of status relating to how the monies are held. We have advised the landlord accordingly who is insistent that his risks are covered and therefore has accepted the change of status rather than use it towards the final months of rent. Therefore as of the 6th august the £1800 that was held as rent in advance became deposit and has been recorded and protected accordingly. I attach the updated deposit certificate that now shows a deposit value of £2800.

In the absence of rent in advance you will be required to pay the rent for the remaining tenancy period. I hope this now gives you clarity as to the position of your monies held which has been complicated by the landlords instruction initiating the change in status. You have intimated that you want to give notice on the property and would be writing to us shortly to confirm this. Up until we have this notice in hand we can only assume that you are staying in the property.

Do hand in your notice in writing, otherwise the LL thinks he needs advance rent. And for the above

Dear Agent

Thank you for your letter of <date> and for confirmation that the the money in question was given as advance rent. We do not consent to it being held as deposit, and would remind you that while no rent is owing the money is indisputably ours.

As notice has now been given, we would instruct that this money is to be used as rent for the remaining term of the tenancy. The surplus must be returned in full at the conclusion of the tenancy, otherwise we shall initiate proceedings to recover it without further notice. Please advise <Mr Landlord> accordingly

Yours etc

Reading between the lines, the Agent is doing as he is told, but does not seem too happy about it.

whatdowedonext

Forgot to mention they also issued a certificate for £2800 but with an issue date of 27/09/2009 can they do this???

sequence

Before you do anything, check with the scheme to see if the deposit is actually registered.

I wouldn't be surprised if they faked it.

princeofpounds

Well done. I arrived at this thread a little late but you are already over the worst, assuming the increased 'deposit' is indeed protected (Check with the scheme again!).

WWH and tbs have given you the right advice here, as have most of the others. If the money was being held as a deposit then it had to be protected. If it was rent in advance then you had no more rent due. The landlord cannot have their cake and eat it, it looks like the LA finally educated him on that.

BTW, when they call you 'just tenants', that is what you are. You are not clients of the LA, they work only for LL, even if you pay them fees for various things. Never forget that - they will lie for the LL, obstruct for the LL, and misdirect for the LL (assuming nothing illegal, and even then they might!).

You should be safe either way now. If you refuse to pay rent from here in then accept the deduction from your new, enlarged 'deposit'. Pay rent and the deposit is protected to be reclaimed.

IF your cashflow is healthy enough then you can probably relax a bit now, but if you want to push it then you can fight the rent being classed as a deposit, but that's up to you - you will gain relatively little from that given the timescale you have left.

As for the certificate, you may wish to write back and state that whilst you are thankful for the prescribed information on the extra amount of advance rent that the landlord is classifying as a deposit, you note that the date on the form is incorrect (and suggest the correct date). Point out that the landlord had an original duty to provide this information within 14 days of the deposit being paid, and as a result the correct date of protection is an important matter of record for you. State that you expect your deposit to be returned promptly and in full on departure, fair deductions aside.

princeofpounds

Oh, I should note that rent in advance that is intended to be a 'permanent' buffer in this was ALWAYS counts as a deposit once you get over 1 month (IIRC). This has been held in a number of deposit cases now.

Sparky29

Due to work commitments I let my house out. On the rental agreement I stated that the deposit was £900 and they signed to agree with the terms. I presume you have done the same.

I can't see how 2 months before the end of the contract the land lord can change the terms and conditions that you have agreed to in advance to suit him. You have paid 2 months rent in advance. He cannot turn rent into another deposit.

I can't see why you are even humouring their letters because they haven't got a leg to stand on. They can't even evict you in the length of time you have left on your contract. I know from experience it is a nightmare to evict someone with very little chance of recovering the money as the law favours the tenant.

I personally would just tell them where to go and stop paying when you formally give your notice regardless where they claim to have put your RENT IN ADVANCE.

whatdowedonext

princeofpounds wrote: »

Well done. I arrived at this thread a little late but you are already over the worst, assuming the increased 'deposit' is indeed protected (Check with the scheme again!).

WWH and tbs have given you the right advice here, as have most of the others. If the money was being held as a deposit then it had to be protected. If it was rent in advance then you had no more rent due. The landlord cannot have their cake and eat it, it looks like the LA finally educated him on that.

BTW, when they call you 'just tenants', that is what you are. You are not clients of the LA, they work only for LL, even if you pay them fees for various things. Never forget that - they will lie for the LL, obstruct for the LL, and misdirect for the LL (assuming nothing illegal, and even then they might!).

You should be safe either way now. If you refuse to pay rent from here in then accept the deduction from your new, enlarged 'deposit'. Pay rent and the deposit is protected to be reclaimed.

IF your cashflow is healthy enough then you can probably relax a bit now, but if you want to push it then you can fight the rent being classed as a deposit, but that's up to you - you will gain relatively little from that given the timescale you have left.

As for the certificate, you may wish to write back and state that whilst you are thankful for the prescribed information on the extra amount of advance rent that the landlord is classifying as a deposit, you note that the date on the form is incorrect (and suggest the correct date). Point out that the landlord had an original duty to provide this information within 14 days of the deposit being paid, and as a result the correct date of protection is an important matter of record for you. State that you expect your deposit to be returned promptly and in full on departure, fair deductions aside.

I believe the day I was told that the advanced rent was a deposit should be the date on the certificate ie 5th August when I first asked to use the advanced rent to cover last two months rent. Not 27th September 2009 when we paid the advanced rent.