Notice given but 2 months rent upfront

foolishqueen

Good evening,

We have given notice on our property as we are moving areas. However at the start of our tenancy, we paid 2 months rent upfront rather than the usual 1 month and deposit.

Given that I am in effect 1 month ahead in terms of rent, with my payment due to go out next week for the last month, do I in fact need to pay that?

Cheers.

BitterAndTwisted

Paying rent two months in advance at the start of a tenancy is unusual. Did you pay rent at the beginning of the second month and every month thereafter?

tbs624

It sounds as though your LL wants to try and work their way around the tenancy deposit regs. If you have paid up in full every month since that first rent payment was made then, no, IMO you should not be paying the final month's rent.

Note that despite having taken no deposit LL can pursue you to court for any damage etc if necessary.

jamie11

BitterAndTwisted wrote: »

Paying rent two months in advance at the start of a tenancy is unusual. Did you pay rent at the beginning of the second month and every month thereafter?

To add to B&T's question..........

Does it state that the rent you paid was to cover the first and the last month of the tenancy, because if it did not then the extra month could fairly be claimed to be a deposit. Also did you pay a deposit in addition to the 2 months rent? Has it been protected and have you had the prescribed information?

tbs624

jamie11 wrote: »

. Also did you pay a deposit in addition to the 2 months rent? Has it been protected and have you had the prescribed information?

jamie11 - note the OP says "we paid 2 months rent upfront rather than the usual 1 month and deposit." - this suggests to me that no tenancy deposit was requested or paid over

DVardysShadow

tbs624 wrote: »

jamie11 - note the OP says "we paid 2 months rent upfront rather than the usual 1 month and deposit." - this suggests to me that no tenancy deposit was requested or paid over

I think that jamie is pointing to a subtle distinction between

• 2 months rent upfront [implied 1st and 2nd month]
• 2 months rent upfront, being explicitly 1st and last month's rent

In the first case, it seems to me to be very easy to recover the money by just not paying rent for the second month and not risk being in arrears or be doing anything which jeopardises the tenancy.

Hence the LL may well be invoking the second option to prevent the tenant recovering the month's rent. But as the last month's rent is for an indefinite point in the future, I would be inclined to view it as a deposit from a layman's perspective

jjlandlord

foolishqueen wrote: »

Given that I am in effect 1 month ahead in terms of rent, with my payment due to go out next week for the last month, do I in fact need to pay that?

If what you paid at the beginning of the tenancy was clearly specified to be rent in advance (and hopefully in writing), you do not want to rely on the landlord refunding any excess when leaving.
So, if you are 1 month in credit do not pay now for your last month rent: You have already paid!

jamie11 wrote: »

Does it state that the rent you paid was to cover the first and the last month of the tenancy, because if it did not then the extra month could fairly be claimed to be a deposit.

This is correct.
However it is OP's interest to play ball and consider the amount paid as rent in advance.
It would only be in OP's interest to claim it is in fact a deposit if the LL had served a s.21 notice...

DVardysShadow

jjlandlord wrote: »

....
It would only be in OP's interest to claim it is in fact a deposit if the LL had served a s.21 notice...

It is only in OP's interests to decide whether it is deposit or rent when there is a benefit to making a claim one way or the other ....

jjlandlord

DVardysShadow wrote: »

It is only in OP's interests to decide whether it is deposit or rent when there is a benefit to making a claim one way or the other ....

Obviously.
Main (only?) benefit to claim it is a deposit is to invalidate a s.21 notice, imo. Hence my previous comment. (I'm obviously assuming that tenants are like OP and can count, so will not unnecessarily overpay due rent)

foolishqueen

All,

Thanks for taking the time to reply. When I signed for the house 4 years ago, I do remember being told by the agent that they take 2 months rent upfront, and that it was not a deposit. I'm fairly sure I paid the next months rent too, but without requesting my old bank statements (from a now different bank) I can't be 100% sure!

It is me who has served notice (we are relocating) and being aware that I wasn't 100% sure that money given at the start of the tenancy was deposit or not, and I know that I have received no formal documentation stating any money I have paid has been protected as a deposit, I stated this in my notice letter to the company, requesting the money be returned within 30 days of me vacating the property (I phrased it as though it was a deposit to see what they would say).

They came back with this, and I quote:

"With regard to the £600 security deposit, our policy is to takes two months rent in advance with no deposit, and as such no deposit would be due.".

It is complicated in that the original agreement was drawn up by another management company to the one who manages the property now!

My current rent is £700 a month, therefore in my mind, as of next week, I would owe them £100,and not £700. I'm not trying to pull a fast one by any means and will happily pay if that is what is required, but there isn't much clarity - perhaps I'm best to ask them specifically tomorrow?

My tenancy agreement doesn't state anything about a deposit or 2 months rent in advance, but I have a receipt from the original letting agent that I paid the £1200 back then.

Cheers.

rpc

I would take the view that, assuming you made the first regular rent payment one month into the tenancy, you paid next month's rent nearly 30 days ago. If the initial payment was for month's 1 & 2 then this is correct.

Alternatively, if the initial payment covered the first and last months (less likely I believe) then I would still take the view that you have paid it. One month's rent is one month's rent. They can't change the amount due after it has been paid (to a layman's eyes anyway).

You do need to know when you made your first regular rent payment. I suspect it was made ~1 month into the contract and this agent is trying to work around deposit rules - "Oh you owe £X cleaning fees and £Y for old rope, but we have some excess rent so we will dock it off that."

Don't pay the last month. If they object, ask for a rent statement for the entire tenancy. All communication done in writing.