House mate changing his mind about moving out - contractual problems - help!

Daneel

BitterAndTwisted wrote: »

Despite all of the contractual complications the easiest way to satisfy S about their deposit is for the new incoming tenant to pay their deposit directly over to S. Where there is more than one person on a tenancy the deposit will be protected with MyDeposits under the name of the "lead tenant" who is the party to whom the whole of the deposit will be returned at the end of the tenancy, and it is for for them to distribute the monies to the other parties.

Nothing bad will come of this old/new tenancy agreement until and unless there are rent-arrears. As long as there are no rent-arrears there can be no issues as to liability.

I agree, and that is the way I hope it will go. But it feels like extortion. If J inspect's S's room, and there is damage / it's not clean etc. and wishes to make a deduction as a result, S will just say, give me all my deposit back or I'm not leaving.

DVardysShadow

Daneel wrote: »

Ok, that is interesting. So worst case, if I just want all of this over, I alone can end the tenancy a month after the end of the fixed period by giving notice? That would mean that S's ability to screw this all up is limited to a month after the end of the contract date?

Yes. But. There is a big low level on going argument here about giving notice.

In general [https://forums.moneysavingexpert.com/discussion/comment/47451301#Comment_47451301 refers]

The rules for notice are

• Leaving prior to end of assured term: governed by the break clause [if any] in the contract
• Leaving at end of assured term: No notice, the contract has come to an end, governed by general contract law
• Leaving after end of assured term: 1 month notice, to end at the end of a rental period, governed by the terms of a statutory periodic tenancy.

Now on this forum, there are a number of posters who left another site, LLZ, who are of the view that a Statutory Periodic tenancy has to arise in order to give notice on it. So you can't actually give one month's notice to terminate the SPT until you are actually slightly into the first month, which means that the earliest you can give notice for is the end of the second month of the SPT. [I hope I am representing the view fairly].

Now, I don't go along with that. I think that you can give notice at the end of the Assured Term effective to terminate an SPT one month in,. But where this gets complicated is that you have a Joint and Several party as Tenant.

My way of looking at this is that the AST brings an ad-hoc corporation into being for the sole purpose of fulfilling the tenant side of the AST contract. When a Joint and Several tenancy continues past the assured term, the ad-hoc corporation continues. The ruling allowing 1 party of an SPT to give notice for all is fairness to allow someone to leave the ad-hoc corporation

Now, consider the case that Joint and Several tenants come to the end of an AST. No notice need be given to quit. But there is more to it than quitting, the property has to be surrendered back to the Landlord otherwise a SPT arises. This is applying fairness to the Landlord - giving him the benefit of an SPT rather than creating a legal limbo arising from no notice being required to quit at the end of a SPT.

But it is established in case law that just 1 party of a Joint and Several tenancy can bring a SPT to an end. Because of the transitions between different rules for ending a tenancy, as bullet pointed above, it would seem that the case law to determine what should happen in the edge cases does not exist. To me, it is reasonable that one member of a Joint and Several Tenancy can give notice 1 month before the end of the Assured Term, and prevent the SPT arising. At least the Landlord has notice of what is happening.

But others are of the view that if the other tenants remain, there is no surrender of the property, so a SPT arises. This gives rise to the further complication of whether the earliest notice on an SPT is effective can be 1 or 2 months in.

DVardysShadow

BitterAndTwisted wrote: »

Despite all of the contractual complications the easiest way to satisfy S about their deposit is for the new incoming tenant to pay their deposit directly over to S. Where there is more than one person on a tenancy the deposit will be protected with MyDeposits under the name of the "lead tenant" who is the party to whom the whole of the deposit will be returned at the end of the tenancy, and it is for for them to distribute the monies to the other parties.

If I were new tenant, I would not be satisfied with this and I would strongly advise new tenant not to do this.

A recurring issue here is the incoming tenant who has paid his deposit to the departing tenant and only has a reciept from the departing tenant if anything. This tenant is very vulnerable to losing his money as he has no real proof that it has actually been put as a deposit.

New tenant should be protected by having the old deposit out and a new deposit made, with new tenants name as a tenant registered with the deposit scheme.

jjlandlord

Daneel wrote: »

I have negotiated a further 1 year with the landlord, through the LA, for which I will be staying on, and the the other two people will be leaving, to be replaced with two new people. We, the three new tenants, have signed the new contract, which the LA is classifying as an extension, because I am one of the existing tenants.

It's not an "extension". It's a completely new tenancy, with a different tenant.

Daneel wrote: »

One of my old house mates has already moved out, replaced by a new house mate,

But the tenancy has not ended yet, so this new house mate is not a tenant at this point.

Daneel wrote: »

That would mean my old house mate who has already moved out would be liable for the rent, the person currently in her room would have no liability at all

That's the current situation, actually.


This is all a problem for the landlord/agent to sort out, not you. In my opinion the agent is managing quite unprofessionally.

BitterAndTwisted

I would say that the risks of there being any deductions from the deposit due to dirt and/or damage at the end of the tenancy are probably worth taking just to get this resolved. Obviously this would not be the case if there are items which are seriously damaged like horrible stains to carpeting or bits of furniture which are missing.

Remember, the landlord or their agent would have a very hard time indeed justifying any deductions from the deposit without a dual-signed inventory at the start of the old/first agreement. Was there one? I can't remember whether you've mentioned it. If there was, this needs to be used to verify that S's room is handed over to the incoming tenant in the same state.

Daneel

BitterAndTwisted wrote: »

I would say that the risks of there being any deductions from the deposit due to dirt and/or damage at the end of the tenancy are probably worth taking just to get this resolved. Obviously this would not be the case if there are items which are seriously damaged like horrible stains to carpeting or bits of furniture which are missing.

Remember, the landlord or their agent would have a very hard time indeed justifying any deductions from the deposit without a dual-signed inventory at the start of the old/first agreement. Was there one? I can't remember whether you've mentioned it. If there was, this needs to be used to verify that S's room is handed over to the incoming tenant in the same state.

We've (new tenants) been through the inventory that was taken two years ago at the start of the current lease, and ironed out the one problem we found (stain on the down stairs WC floor, made be a contractor engaged by the LA). That's just the thing though, as I said above, if there is any damage to the room, S will just say I'm staying unless I get my full deposit back.

Daneel

jjlandlord wrote: »

It's not an "extension". It's a completely new tenancy, with a different tenant.

I thought this was cleared up on the last page? The current contract only ends if all of the current tenants vacate? The LA has said that because I'm staying on, it's not new, and that's why no inventory check is being carried out, they are not returning deposits and taking new ones, etc.

Daneel

jjlandlord wrote: »

This is all a problem for the landlord/agent to sort out, not you. In my opinion the agent is managing quite unprofessionally.

The LA has quite explicitly said exactly the opposite, and there's not much I can do to make them do anything (what could they do anyway, they can't make him leave any more than I can?). They have basically said, let's see what happens on the contract end date, and if S doesn't move out, we'll deal with it then.

Daneel

DVardysShadow wrote: »

If I were new tenant, I would not be satisfied with this and I would strongly advise new tenant not to do this.

A recurring issue here is the incoming tenant who has paid his deposit to the departing tenant and only has a reciept from the departing tenant if anything. This tenant is very vulnerable to losing his money as he has no real proof that it has actually been put as a deposit.

New tenant should be protected by having the old deposit out and a new deposit made, with new tenants name as a tenant registered with the deposit scheme.

The LA has confirmed they will update the names held with the deposit scheme. I will certainly require written proof of this.

anselld

Daneel wrote: »

I thought this was cleared up on the last page? The current contract only ends if all of the current tenants vacate? The LA has said that because I'm staying on, it's not new, and that's why no inventory check is being carried out, they are not returning deposits and taking new ones, etc.

If the tenants vacate and new tenants start it cannot be an extension unless it is done by deed of variation signed by those leaving and those joining. (even if one T is the same)