Tenant problem with a twist!!

theartfullodger

Re deposits being deposits.. herewith Housing Act 2004 Section 213(8)
http://www.legislation.gov.uk/ukpga/2004/34/section/213

(8)In subsection (7) “deposit” means a transfer of property 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.

- in this context "property" includes money, your car, a nice diamond ring, whatever.. So even if the "deposit" is described, say, as a month's rent in advance or a "Loan to landlord" or any other fiddle - sorry, nope, it's a deposit..

No offence but sometimes in business you need to realise you made a mistake, got it wrong, so cough up, move on & learn from it..

Most Landlords go through that process, usually several times.. I know I did and probably will again..

Cheers!

Artful (LL since 2000)

PS In case you think courts don't take action over illegal eviction etc. etc. note these cases...
- R v Kham (Jahinger) 2001 15 months’ imprisonment for landlord of previous good character upheld
- Nwokorie v Mason (1994) Occupied a room in shared house, residential Landlord, evicted with no Court Order .. £4.5k
- Ahmed v Bains (2001) £100 per day general damages for unlawful eviction, £3,000 aggravated and exemplary damages .. £13k+
- Bamberger v Swaby (2005) AST trespass, illegal eviction, 8 days out-of-home: £300/day gen damages . £6k
- Sampson v Floyd (1989) - Physical eviction not necessary for breach of covenant of quiet enjoyment - £11k+


a quick peruse of housing law reference works should give you any further background and shedloads more cases if you need themm

princeofpounds

If you tried the 'scheme' to have more rent in advance than 1 month at ALL points in the tenancy (i.e. they can't stop paying even when they have paid enough to see out their notice) then courts see that as a deposit in all but name.

just can't see the point of holding on to a property that they no longer need or use. My original point was asking for advise of wether I could re-enter the property, having given reasonable notice to the current tenants to effect repairs. If permission is withheld, on what reasonable grounds. The agreement also states that the tenant must not leave the property empty for more than two weeks without permission.

What the point is isn't really your concern.

As for re-entering to do repairs, you should provide notice in writing of at least 24hrs. If they deny permission (or have a standing denial as you appear to do) then you cannot enter except in an emergency (gas leak, flood, fire). If they agree then you can enter. It's not that complicated.

They do not need to have reasonable grounds to deny permission. If you are doing genuine repairs (NOT decorating) then you could apply for a court order to allow you to fulfil your section 11 obligations but that will take longer than the situation itself will take and would probably be denied for minor repairs anyway if the tenants put in representation.

The two week clause in likely to be unenforceable. Whilst they have a duty to behave in a 'tenant-like manner' (and so must prepare the house properly whilst away to stop things like burst pipes) you cannot tell them how to live their lives.

The fact that they are quoting their 'quiet enjoyment' rights means that they know at least the basics of the law and this should make you wary enough to do things by the book. Whilst an unauthorised entry is unlikely to actually cause any problems (because they will not suffer a loss that could form the basis of a civil claim, and there is no general offence of trespass) it's high risk because the problems it could cause (criminal offence of harrassment or illegal eviction) are serious.

What I still don't get is why they seem happy for you to show tenants around but not to decorate. It's odd, and I am still convinced there is more to this relationship than you are telling us even if it's something as banal as you upsetting them by your actions with the 'advance rent'/deposit.

rabbitmumu

princeofpounds wrote: »

What I still don't get is why they seem happy for you to show tenants around but not to decorate. It's odd, and I am still convinced there is more to this relationship than you are telling us even if it's something as banal as you upsetting them by your actions with the 'advance rent'/deposit.

I guess the tenants were corporative at the beginning and obviously they want their partial rent refunded if the landlord managed to rent it out earlier. The fact that they honoured the notice period initially could mean they were being very reasonable.

(guess work obviously) But everything changed when the landlord said all those problems needed to be resolved before the deposit is returned. I can only see 3 things (perhaps 4) out of that list is really a problem. If my landlord told me that I am responsible for a leak I would also be bloody furious too.

I am not surprised they start changing their minds and especially if nothing is signed legally. I would prefer to waste £200 (1/2 month rent or whatever) to teach the landlord a lesson.

angrypirate

If you want a week to do repairs prior to the new tenants moving in, then refund the old tenants an extra week.

Return all of the advanced rent as its rent paid in advanced that isnt due, then discuss with the tenant and come to an agreement on how much they are going to pay you for the repairs. Then thank your lucky stars they arent taking you to court for three times the deposit (or as you call it advanced rent). Next tenant, call it a deposit NOT advanced rent and be professional about things.

sonastin

If it's advance rent, return it because they are no longer renting the place. Don't use it to pay for damage. Sue them for the cost of rectifying the damage in a separate action.

If it's security against damage, its a deposit and you need to get it protected straight away. Then you can start lawfully making deductions from it for the repairs.

You can't have your cake and eat it.

They are hanging onto the property to make life difficult for you because you're trying to have it both ways. In their position I'd stop being reasonable and start making you comply with your obligations as well. If you want them to be flexible, you have to be flexible too.

G_M

Babycreature wrote: »

This is a weird and unusual situation, seek advise from any property gurus amongst you.

.....
Thank you.

Indeed! The whole thread is enlightening. Original post gives a partial picture, slanted to self-justify the poster's position.

Gradually further detail is revealed, and the poster's approach is shown to be inappropriate and, indeed, illegal.

OP - you're clearly either an amateur LL unaware of your responsibilities or, worse, you know exactly what you're doing.

A contract that says:

it says so on the rental agreement. "Landlord agrees not to take a deposit".

?
Well, NOT taking a deposit is clearly foolhardy. But as has been shown, this clause is clearly designed to circumnavigate the deposit protection scheme since a deposit HAS been taken.

Indeed, you are trying to make deductions from it for damage (which is exactly what a deposit is for).

darkpool

If I was the original tenant and had paid up to the 27th of January (while moving out in december) and the landlord started wanting money for things that weren't my fault. I would throw the toys out the pram.

It seems like the tenant has been reasonable and the landlord is in the wrong.

Surely all these problems should have been evident during the inspections? Was nothing said then?

slyracoon

Imp wrote: »

From the above statement, you consider the £825 to be a deposit, even if you don't call it a deposit. You are still using it as security.

If it isn't a deposit, and is rent up front, then it should be returned to the tenants without reservation, now.

They probably feel the same, and this is why they have got all mardy with you when you refuse to return to them the money you owe them.

I agree with this.

Its either rent in advance or a deposit, it cannot be both. If its rent in advance it cannot be used as security to cover damage. If its a deposit it must be protected. I would give them their £825 back ASAP before they take you to court for not protecting their deposit, you will then be ordered to pay them 3 x the deposit.

slyracoon

The correct action you need to take is -

1. Return any money owed to them
2. They have a contract until 27th, you must not enter or allow new tenants to enter this date unless this has been agreed in writing with the tenants, (although its sounds like they have withdrawn their permission.
3. Inspect the damage and put it right. You do not have a protected deposit from the tenant so you cannot withold their rental overpayment in lieu, you will have to pay for this yourself and if you think the cost is substantial you should make a claim against the tenant and take it to small claims if they don't pay.
4. Get some proper advice or find an agent to manage your property before your new tenants move in because you obviously lack understanding of the basics.

dizziblonde

You've basically dug yourself into a nice sized hole and it's time to stop digging.

The "rent in advance" that you then slip into calling a deposit - if you're going to call/treat it like this... it needs to be protected - otherwise it's not a deposit and you can't treat it as such. Well you can try, but I'm willing to bet if they've found out about things like quiet enjoyment - that they'll be able to find out about the deposit protection laws very quickly (and being honest - I hope they do).
Whether they've moved out or not - the property is still theirs until the end of their tenancy - if you don't have it in writing they're happy to hand over early - you're in a very slippery place there without a leg to stand on. We moved out of our place early, just with the way the dates of our onward purchase had worked out - the landlord would still have had no right whatsoever to put new tenants in before our formal leaving date. Since you've antagonised them about the deposit (and some of your deductions are flipping unreasonable) - why would they be inclined to be generous with you now? They may well have moved with an overlapping time to allow themselves leeway to go back and clean and get the place up to handover condition - perfectly within their right to do so.

As for the water leak thing - this one's dear to my heart. We had a water leak, I reported it straight away, the landlord chose to ignore it until it became a bigger problem. If he would have had the cheek to try to deduct the damage to the fitted wardrobe and wallpaper from my deposit for an issue relating to his lack of maintenance in the house - I would have hit the roof. Indeed I was perfectly prepared for him to try it on with that one to be honest - and I'd made sure that I had photographs of the leak in progress, logs of phonecalls and the like - just to cover my back against landlords like yourself. Fair dos - if it was a case that they'd gone away with the heating off and a pipe had burst - then it's their fault, but not for an issue with the fabric of the house. I'd be contesting and fighting that one like crazy if you pulled it on me.

The oil stain - cars leak occasionally - unless you want the car to levitate on the driveway - if you're renting the place with the driveway, expect it to be used. It's like saying "oooh you can't have furniture indentations on the carpet" - the house gets used and lived in... if you can't get your head around that concept of renting, that tenants don't live in bubblewrap hovering above the ground so they don't wear your carpet out while meekly paying the rent... then, for the love of all those who live in rented accommodation - get out of the market please because a bad landlord can make your life an utter living hell.

Skirting boards and mirrors, yeah fine... shouldn't be broken (unless it's a maintenance issue leading to the skirting boards hanging off - I'm sceptical here)

The way you're behaving though - I would have dug my heels in and started sticking to the letter of the law too, and you're so far on the wrong side of it that you're in a really sticky situation. Start building some bridges, either protect the "deposit" or quit treating it like that and get some knowledge of the market you're operating in.