6 month Ast with payments spread

fishpond

theartfullodger wrote: »

So each payment of 2 months-rent is paid 2 weeks early: Reading the definition of a deposit(**) that makes it a deposit for those 2 weeks: So unless you protect each payment ...
a) Any s21 will be invalid...
b) Tenant can sue, for up to6 years, for up to 3xthat 2-month-rent "deposit". That altogether will make a very large amount of ££££££ either up to 12 or 18 months rent the judge can award....

(**) See Housing Act 212(8)
http://www.legislation.gov.uk/ukpga/2004/34/section/212
What clown drafted that tenancy?? How much did he charge you for that quality piece of legal advice??

Sorry, what piece of legal advice?

G_M

fishpond wrote: »

They have been there 12 months already, and have put up with a lot of house building next to them.
They are quiet, and upon inspections they are keeping a clean& tidy house, with few complaints coming my way really only a few niggles which have been sorted.

So just let it go to a SPT!

artful's comment about it being a deposit seems pertinant. At the very least it could lead to a complex legal fight in court.

jjlandlord

theartfullodger wrote: »

So each payment of 2 months-rent is paid 2 weeks early.

It's not paid 'early', it's paid when it's due. It's not a deposit.

fishpond

Please hang on in here.
So if it is paid 2 weeks in advance it could be seen as a deposit, but if it is paid on the day it is due, then that is not a problem.
Would it help at all if the wording in the contract stated the advanced rent was rent and not a deposit?

fishpond

Found this (if you are not aware of this case, you may need to read it first)
The Claimant appealed that Order and the appeal was heard in the Brighton County Court in front of HHJ Simpkiss on the 31st July who overturned the decision of DDJ Collins and awarded possession and costs.

At that hearing HHJ Simpkiss found as follows:

the rent paid in advance was not a ” security” to ensure that the Defendant fulfilled the obligation to pay rent but was actually the obligation itself.
the rent paid in advance was never intended to be returnable at any time during the tenancy or once it had ended and that the monthly rent was never sought from the Defendant on a monthly basis in addition to the up front payments.
He also found that whilst the rental clause was convoluted, the intention of the parties was obvious from the out set.

fishpond

G_M wrote: »

So just let it go to a SPT!

artful's comment about it being a deposit seems pertinent. At the very least it could lead to a complex legal fight in court.

Not, it seems, if it is written in the contract, which would, of course be signed by the tenant, therefore alleviating any confusion as to whether it is rent or a deposit.
?

G_M

I think you're right.

But I still think the hasstle of this convoluted contract is not worth the effort.

You've said

They have been there 12 months already, and have put up with a lot of house building next to them.
They are quiet, and upon inspections they are keeping a clean& tidy house, with few complaints coming my way really only a few niggles which have been sorted.

They are known, reliable tenants with a good history.

Just move to a SPT now that their first 12 months is up.

theartfullodger

fishpond wrote: »

Found this (if you are not aware of this case, you may need to read it first)
The Claimant appealed that Order and the appeal was heard in the Brighton County Court in front of HHJ Simpkiss on the 31st July who overturned the decision of DDJ Collins and awarded possession and costs.

At that hearing HHJ Simpkiss found as follows:

the rent paid in advance was not a ” security” to ensure that the Defendant fulfilled the obligation to pay rent but was actually the obligation itself.
the rent paid in advance was never intended to be returnable at any time during the tenancy or once it had ended and that the monthly rent was never sought from the Defendant on a monthly basis in addition to the up front payments.
He also found that whilst the rental clause was convoluted, the intention of the parties was obvious from the out set.

This is written up in more detail here...
http://www.landlordlawblog.co.uk/2012/08/28/when-is-rent-deemed-to-be-a-deposit-update-on-johnson-v-old/
- and seems to be about 6-months rent paid in one lump not about paying 2-weeks early.

I remain of the view that it is a deposit (others may hold alternative positions) and at the very least whoever provided the legal advice to draft the tenancy this way has dug a large hole for the landlord/agent (to delay any eviction, slow cases down & expose to HUGE penalty) & hopefully will refund any fee charged.

I ask again, who drafted this "2-week early" bit, please??

Cheers!

jjlandlord

fishpond wrote: »

Yes, but as the rent is being paid upfront in advance before the due date of the 1st months rent and 2 months at a go, I think I would gain at least a month on an s8. (I think)

I think you haven't got my post.

Rent is not payable monthly, so why do you assume the 2 months rent overdue still apply?

fishpond

jjlandlord wrote: »

I think you haven't got my post.

Rent is not payable monthly, so why do you assume the 2 months rent overdue still apply?

Sorry
You have lost me.
(is this a reference to a s8?)