Advice please. Ended tenancy and a few questions.

Codename_Willy

Hello.

Girlfriend ended her tenancy recently. She needed to give teo months notice, which she did on 6th October. Landlord asked her to be out by 22nd November which she was, landlord agreed to payback rent from 6th December - 23rd November but has not yet and wont answer to texts or phonecalls.

What can we do? Upon last seeibg the landlord I got in to a heated discussion with her over bogus charges she wanted my girlfriend to pay. I recorded this whole conversation, the landlords husband and the estate agent were also present but didnt talk/walk around with us and just milled about by the front door.

Girfriend was on an Assured shorthold tenancy, paid two months rent up front (No deposit) and there was no inventory. Paper work states that it was to be used if the landlord was part of the deposit scheme which she is not.

On paperwork where it says deposit it is crossed out and has rent written above it. Also there is a page the landlord has written on that says about the two months rent and no deposit, that carpets must be cleaned when leaving and utilities must be changed over.

Landlord is quite frankly a pain. She came to see girlfriend when she was told she was handing her notice in and said 'oh you'll get your deposit back at the end' and said to that to me over the phone to.

Landlord also wanted flat repainted but i point blank refused that as girlfriend had lived there for 2 1/2 years and landlord could not prove it was repainted when she moved in (No receipts). There was no damage to carpets or walls (Few minor marks on wall by front door, but no paint damage)

We cleaned flat high and low before leaving and i took pictures as well of all sockets and bits.

What can we do? She agreed to give back rent based on daily rent (Rent was £460 p/m, daily rate is £15.33, landlord should owe £199.29)

Landlord booked carpet cleaner without consulting girlfriend and told me to sod off when I queried this.

Any help? I sent landlord a text yesterday saying i would contact a solicitor if she didnt respond by Monday but I doubt i'll hear anything.

I was not on tenancy, girlfriend is too nice a person to contest/question things and so i've been doing this for her. Landlord knew this and still tried to refuse discussing things with me even when girlfriend was present.

Help advice would be appreciated

Have been to CAB, would get more help from a chocolate teapot though as they had limited/no information for this kind of situation.

G_M

OK- you need to clarify this two months rent:

paid two months rent up front

On paperwork where it says deposit it is crossed out and has rent written above it. Also there is a page the landlord has written on that says about the two months rent and no deposit,

Was this money actually rent? ie
*did it cover the 1st two months she lived there?
*When did she next pay rent?
* when did she last pay rent?
* what period did the final rent payment cover?
* when the tenancy ended, had she overpaid by two months?

Now please quote the exact wording on the tenancy agreement about
* rent (amount, date of 1st payment, frequency of payments etc)
* this clause with [STRIKE]deposit [/STRIKE]rent

When answering the above question, to make it completely clear, it would help to have exact dates ie
* date tenancy started
* date of each payment
* length of tenancy as stated in the agreement and/or end date

Now, some other points:
* if there was no inventory, she is in a strong position to contest costs for carpets, cleaning etc
* she MAY be able to sue for non registration of deposit (answer Qs above)
* But at the end of the day, if this cannot be resolved amicably, the only solution is to use the courts - my guess is she has a strong case but you need to clarify the points above
* stop texting! STOP. Do everything by letter, in her name, with her signature, and ask the post office for 'Proof of posting' (NOT recorded delivery)

(I'm off to bed now, but once you've answered/clarified the above, others will be better able to advise you.)

benjus

It does sound like the landlord was trying to avoid having to register the deposit by pretending that it wasn't a deposit. This doesn't work - as far as the law is concerned any money that is refundable to the tenant and can be claimed by the landlord against dilapidations etc comes under deposit legislation, no matter what the landlord calls it.

You need to answer G_M's questions to confirm this, though.

Codename_Willy

G_M wrote: »

OK- you need to clarify this two months rent:
Was this money actually rent? ie
*did it cover the 1st two months she lived there?
*When did she next pay rent?
* when did she last pay rent?
* what period did the final rent payment cover?
* when the tenancy ended, had she overpaid by two months?

Now please quote the exact wording on the tenancy agreement about
* rent (amount, date of 1st payment, frequency of payments etc)
* this clause with [STRIKE]deposit [/STRIKE]rent

When answering the above question, to make it completely clear, it would help to have exact dates ie
* date tenancy started
* date of each payment
* length of tenancy as stated in the agreement and/or end date

Now, some other points:
* if there was no inventory, she is in a strong position to contest costs for carpets, cleaning etc
* she MAY be able to sue for non registration of deposit (answer Qs above)

It covered the first months rent and then the last months rent.
She last paid rent on the 6th October (6th November was paid by the rent at the start if that makes sense?)

When the tenancy ended she was up to date with payment and owed nothing. Landlord asked for flat back 2 weeks early and said she'd payback some rent on a day by day basis.

Date tenancy started was 6th February 2011 and each payment was due on the 6th of each month via standing order.

Tenancy was for 6 months (February to August 2011)

There is an individually negotiated terms page which reads:

No deposit 2 months rent.
Payment in advance.
No smoking allowed.
1 cat only.
Inspection of property monthly.
***** allowed to have access to flat to move items in.
Keys to be held at estate agents.
electricity and water/sewage to be put into *****'s name on 6th January.
Carpets to be professionally cleaned upon leaving.

We didnt have a problem getting the carpets cleaned but the landlord has been very arsey with me when I question her on things.
She wanted the flat repainted when my girlfriend left and I said no as she had no receipts to prove it was done before.

We received an email from the estate agent last night which said about getting repaid money, £195 and then some ridiculous reductions £95 carpet cleaning bill (It was a one bed ground floor flat not the Ritz, and we were told it would be £60) and then £40 for the broken cat-flap to be repaired.
The cat-flap was my girlfriends not the landlords though she did allow it to be installed.

The document/contract is an RICS Agreement for the creation of an assured shorthold tenancy (England and Wales only)
Only to be used if the deposit holder is a member of the dispute service LTD (TDS)

Now i've rand the TDS and they have nothing on the flat (No information or deposit held with them)

Should I pay for a Solicitor to go through this? Is there a time limit to do it in?

And sorry I took a few days to reply I lost the documents as we are currently moving in to a shared house which luckily my mum owns so we wont have any issues there!

I can also take pictures of the contract and post them here with the obvious omissions

BitterAndTwisted

If the landlord is intent on making these deductions from the rent paid which is due to be refunded your only recourse would be court. You don't need a legal representative to do this as their fees would in all likelihood be more than the amount that's disputed.

Was there a dual-signed inventory at the start of this tenancy? What documentary evidence is there that the deductions they are proposing are justified?

Codename_Willy

BitterAndTwisted wrote: »

If the landlord is intent on making these deductions from the rent paid which is due to be refunded your only recourse would be court. You don't need a legal representative to do this as their fees would in all likelihood be more than the amount that's disputed.

Was there a dual-signed inventory at the start of this tenancy? What documentary evidence is there that the deductions they are proposing are justified?

As ive said several times there is no inventory.
Documentary evidence? Receipts do you mean? If thats the case we have seen no receipts as of yet

G_M

This is my understanding:

* the 2 months rent. This DOES appear to constitute rent, not a deposit, since it covers 2 rental payments of the tenancy (the first and last):

* the tenancy is Periodic (monthly SPT) since the 6 month fixed term ended on 5th Aug 2013. The tenancy periods are 6th to 5th of each month

*Notice was given on 6/10/13, to expire on 5/11/13 (one tenancy period), however by mutual agreement the tenancy was extended till 22/11/13

* rent was last paid on 6/10/13 covering period 6/10/13 - 5/11/13 (Though I have no idea why the tenant paid this as notice had been given and the rent already paid - see next point)

* the 'advance rent' initially paid covered the period 6/11/13 - 22/11/13 plus an overpayment of a further 13 days rent. Had the tenant worked out what rent was actually owed, before paying, things would be simpler!

* Over-paid rent should be returned. See below.

* several of the terms (monthly inspections, access to move items etc) are unenforceable, however that is now academic.

* carpets do not have to be cleaned professionally unless that is the only way to return them to the state of cleanliness they were in at the start. Without an inventory (or professional cleaning receipt dated Jan/Feb 2013) the LL cannot prove what condition they were in at the start

* Repainting: as carpets above

* catflap: a) did the tenant get written permission to install a catflap? If not, she could be asked to remove it and leave the door undamaged (NOT with a hole!). b) if permission for the catflap is not in question, it should be left in good condition. If broken by the tenant, the tenant is responsible

* deposit schemes: did you check all five Deposits schemes (though it appears highly unlikely there is a registered deposit)?

* a solicitor is not needed to make a claim via the courts. As b&t says, it willcost far more than the amount claimed and solicitors costs cannot be claimed in the Small Claims Track


Landlord cannot have it both ways:
1) Either the landlord considers the extra payment upfront as rent, in which case the overpaid rent must be returned without question
2) or it is considered a deposit (from which damage deductions can be made) in which case it should by law have been registered. As it was not, the 3 times penalty can be claimed.

If you'd like a draft "Letter Before Action" for the landlord, I'll post one if you'll make a decent contribution to the charity myelomaUK. (or someone else may come along a do one anyway...)

Ending/Renewing an AST (what happens when the Fixed Term ends?)(What is a Periodic Tenancy?)(How can a LL remove a tenant?)(How can a tenant end a tenancy?)

Codename_Willy

I seem to not have mentioned that my girlfriend needed to give 2 months notice to leave (This is what was written in the contract), Standing order was cancelled on the 7th October.


Cat-flap was put in with Landlords permission but it wasn't written only verbal.


I have checked with all 5 deposit schemes and none of them had the flat on their database.


Landlord spoke to myself and my girlfriend in person saying it was a deposit but I have no proof of this other than 'he says she says'


With the carpets, does it not matter even if it was mentioned in the contract to clean them? And the fact we were told it would be £60 to clean them that has now skyrocketed to £95 (1 bed flat, front room and bedroom had carpet, everything else was lino)


Does the landlord have to return overpaid rent and not take any money off for carpet/other expenditures?


Sorry if I seem not too clear on things or ask too many questions, this is driving me up the wall!


I will gladly donate to Myleoma in return for a letter, what does the court action consist of? (Rough timeline, hearings, etc...)


Thank you for replying


Something i've forgot to mention is that the keys were returned on the 12th November does this affect anything at all?

G_M

Codename_Willy wrote: »

I seem to not have mentioned that my girlfriend needed to give 2 months notice to leave (This is what was written in the contract), Standing order was cancelled on the 7th October.
Is the tenancy reaching the end of its Fixed Term? NO notice is required.
Has the FT already ended and the tenancy become Periodic? ONE full tenancy periodsnotice required.
See the link I provided in post 7 above.

Cat-flap was put in with Landlords permission but it wasn't written only verbal.
Then it depends if the LL accepts/denies this permission was granted


I have checked with all 5 deposit schemes and none of them had the flat on their database.
well done.


Landlord spoke to myself and my girlfriend in person saying it was a deposit but I have no proof of this other than 'he says she says'
As catflap above.


With the carpets, does it not matter even if it was mentioned in the contract to clean them?
see my previous post.
And the fact we were told it would be £60 to clean them that has now skyrocketed to £95 (1 bed flat, front room and bedroom had carpet, everything else was lino)
What does the quote he provided say? What does your own quote say?


Does the landlord have to return overpaid rent and not take any money off for carpet/other expenditures?
As previously advised (sigh!), rent is .... rent. Not a deposit from which damage deductions can be made.
A deposit is.... a deposit from which damage deductions can be made, but which must be registered.


Sorry if I seem not too clear on things or ask too many questions, this is driving me up the wall!
It's not the number of Qs that is driving me up the wall, but the fact they are the same Qs!


I will gladly donate to Myleoma in return for a letter, what does the court action consist of? (Rough timeline, hearings, etc...)


Thank you for replying


Something i've forgot to mention is that the keys were returned on the 12th November does this affect anything at all?

What matters is when the tenancy ended.
Returning the keys is one requirement before the tenancy can end, but equally if returned early that in itself does not end a tenancy.

In this case it appears there was a mutual agreement to end it on 22/11 (how was this agreed - in writing?), and the tenant vacated/returned keys etc on or before that date, so the tenancy ended on 22/11 (as per my previous post.)

G_M

Codename_Willy wrote: »

......

I will gladly donate to Myleoma in return for a letter, what does the court action consist of? (Rough timeline, hearings, etc...)

The letter should be sent by 1st class post (NOT recorded delivery) to the landlord, at the address provided (usually on the tenancy agreement) "for the serving of notices". Send from a PostOffice and request "proof of posting".

A copy should be sent to the agent.

---

Dear Mr Landlord,

LETTER BEFORE ACTION

I write further to my emails dated xx/xx/2013, yy/yy/2013 (etc), letter of zz/zz/2013, and conversation of aa/aa/2013 (etc). (list them all - important to sum up for the court later)

On xx/xx/2013 (or ’in your letter of xx/xx/2013’) we agreed a tenancy end date of 22/11/2013. I returned the keys to you in advance of this (12/11/2013) and vacated the property on that date. The tenancy therefore ended on 22/11/2013.

Furthermore, my letter giving notice was served on 6/10/13, thus giving more than the required one full tenancy period notice as required for a Statutory Periodic Tenancy (established in the Court of Appeal : [FONT=&quot][FONT=&quot]Laine and Mitchell v Cadwallader & Cadwallader (2001)[/FONT] [/FONT] ).

On 6/10/13 I paid £XX rent covering the period 6/10/13 to 5/11/13.

Additionally, as required by the contract, I initially paid two months rent in advance, the second of which covered the final months rent: 6/11/13 to 5/12/13.

I have therefore overpaid rent by 13 days (= to £XX). Despite repeated requests you have declined to refund this overpaid rent.

You have indicated (your letter/email/conversation of xx/xx/13) that this is because you wish to retain an amount to cover alleged damage.

If this is the case, then clearly the initial ‘second months advance rent’ payment I made as per the contract, was not rent (as claimed) but was a deposit, which should, as you know, have been registered as required by the Housing act 2004. Since this deposit was not registered, the penalty specified in the Housing Act(as amended by the Localism Act 2011) would apply.

With regard to the alleged damage:

1) The carpets are in the same condition as they were at the start of the tenancy (less 2 ½ years fair wear and tear). If you dispute this, kindly forward a copy of the check-in report and photographs I signed at the start describing the state of the carpets at that time, and the check-out report indicating the difference.

2) The wall paintwork is in the same condition as at the start of the tenancy (less 2 ½ years fair wear and tear). If you dispute this, kindly forward a copy of the check-in report and photographs I signed at the start describing the state of the paintwork at that time, and the check-out report indicating the difference.

3) I accept that the catflap is broken and agree that a charge of £40 is fair.

Kindly therefore, within 5 days of receipt of this letter, return in full the overpaid rent of £XX. I will then happily pay for the repair to the catflap.

Should you fail to refund the overpaid rent within the timescale outlined above, I shall conclude the monies paid at the start of the tenancy were a deposit, from which you are making a deduction for the disputed damage, and not rent. I shall therefore commence legal proceedings:

1) For the penalty for failure to protect the deposit as required by law and
2) For return of the deposit, since I dispute the damages you claim.

Yours sincerely,

A Tenant

---

If you decide to sue for the rent only, use https://www.moneyclaim.gov.uk/web/mcol/welcome for the Small Claims Track.


To sue for the 3 times penalty for deposit non-registration, it is unclear on the process. It could be a Part 8 Claim (more expensive) , though Tessa Shepperson (solicitor) believes judges are allowing these claims to go via the Small Claims Track. My suggestion would be to phone the court, ask the Officials forprocedural advice (they cannot give legal advice,only process) and follow that.