Landlord withholding a retrospective payment but refunded deposit

saajan_12

1) Ordinarily, the LL can serve 2 calendar months (doesn't have to align with rent dates) notice of intention to seek possession in court. If you wish to leave earlier, you would need to serve your own valid notice else no rent refund is due.

2) However in this case it appears there was a agreement to mutually surrender the tenancy, which overrides notice dates. Assuming this is in writing (or the LL doesn't dispute it) and states £x rent refund + deposit is due, then per the new agreement, since deposit has been returned, LL owes £x.

3) OP is liable for any damages - whether the LL's claims are valid and how much is due is a matter for proof, negotiation and if not, court. The repayment of the deposit is not commitment that there are no damages (just like you overpaying rent is not an admission you owe full rent that month.. you could have cancelled the SO and paid the part month).

4) So LL owes £x rent refund. OP owes £y to be determined for damages. Either agree on a figure or file a money claim. The judge will make a net award for £x rent refund - £y damages. If this is found in your favour, you will likely be able to claim the court fee too.

5) The label as a 'rent retrospective payment' or a 'deposit' is irrelevant. There's no deposit protection penalties as the money wasn't taken as a deposit but as rent. The LL thinks you owe money for damages. He can subtract that from money he owes you for rent. IF you disagree, negotiate or sue.

G_M

There is ambiguity in your answers.

gjm1168 wrote: »

They issued the termination days after my monthly rental payment was paid. They gave a termination date that coincided with my monthly payment date almost three months later. Payment date is the 1st of every month. They terminated on 3rd or 5th (I can't remember exactly) of October saying vacate by 1st Jan 2018.

What, even if this has been agreed that it should be?

As I understand it, 2 things happened:

1st the LL 'gave you a termination date' - I assume you mean a S21 Notice?. This was due to expire on 1st Jan 2018.

However this became meaningless and can now be ignored since....

2nd you mutually agreed an Early Surrende. This is what now matters. So:
a) what date was agreed between you for the Early Surrender?
b) was it agreed in writing?
c) did that agreement in writing specify that rent would be payable pro rata in the final month and any over-paid rent returned?
d) were any penalties discussed and included in the Early Surrender agreement?

If the agreement for you to leave early, mid-month, was simply a discussion, how are you going to prove that itt happened at all and the tenancy was properly ended? If you can't, you may owe rent til 1/1/18.

gjm1168

saajan_12 wrote: »

1) Ordinarily, the LL can serve 2 calendar months (doesn't have to align with rent dates) notice of intention to seek possession in court. If you wish to leave earlier, you would need to serve your own valid notice else no rent refund is due.

Yes, it is peculiar to my contract that notice served by either party runs from the payment cycle, not the date on which it was served. The LL is compliant here so no argument from me.

saajan_12 wrote: »

2) However in this case it appears there was a agreement to mutually surrender the tenancy, which overrides notice dates. Assuming this is in writing (or the LL doesn't dispute it) and states £x rent refund + deposit is due, then per the new agreement, since deposit has been returned, LL owes £x.

Now this is the salient point because this overrides the contract and the LL doesn't dispute the amount owed at all.

saajan_12 wrote: »

3) OP is liable for any damages - whether the LL's claims are valid and how much is due is a matter for proof, negotiation and if not, court. The repayment of the deposit is not commitment that there are no damages (just like you overpaying rent is not an admission you owe full rent that month.. you could have cancelled the SO and paid the part month).

And this is where it gets tricky. I can't get anyone to arbitrate because that only extends to the deposit, not the refund! I'd have to go to court and this is my point: he's been crafty by returning my deposit in full knowing there won't be any ability to arbitrate on the refund, it would have to go to court and he's banking on that not happening. It is deliberate because the notification from him about refunding my deposit also goes onto say he's withholding the refund for alleged damages.

saajan_12 wrote: »

4) So LL owes £x rent refund. OP owes £y to be determined for damages. Either agree on a figure or file a money claim. The judge will make a net award for £x rent refund - £y damages. If this is found in your favour, you will likely be able to claim the court fee too.

I'm hoping to avoid court as that's just useless for all concerned, but I agree with your calculations

saajan_12 wrote: »

5) The label as a 'rent prospective payment' or a 'deposit' is irrelevant. There's no deposit protection penalties as the money wasn't taken as a deposit but as rent. The LL thinks you owe money for damages. He can subtract that from money he owes you for rent. IF you disagree, negotiate or sue.

So what's the point, or safety, of having a DPS if the LL can effectively just do as he wants anyway??

Thanks for your reply, it's the clearest yet and devoid of opinion or subjective nonsense..

G_M

As both saajan_12 & I have said, what matters now is

a) whether or not there is disagreement over the Early Surrender date
b) whether it was in writing (in case of disagreement)
c) whether there were any other costs/penalties etc associated with the agreement

Assuming no disagreement above then if the LL witholds some of your (over-paid rent) money because he believes you caused damage, you can do one of 2 things:

d) negotiate and reach an agreement or
e) sue

If you sue, the LL has the option of counter-claiming for the damage. The court will then decide both matters.

[Deleted User]

I agree.., but make sure you have photos/emails etc to help prove your case if it does go to court.

It does sound like you have a fairly good case so hopefully the LL will back down, but no guarantee at all you will get the money before Xmas.

saajan_12

gjm1168 wrote: »

And this is where it gets tricky. I can't get anyone to arbitrate because that only extends to the deposit, not the refund! - you can, a court. I'd have to go to court and this is my point: he's been crafty by returning my deposit in full knowing there won't be any ability to arbitrate on the refund, it would have to go to court and he's banking on that not happening. It is deliberate because the notification from him about refunding my deposit also goes onto say he's withholding the refund for alleged damages. - your speculations on his craftiness aside, your options are to negotiate or sue. He wouldn't be obligated to follow the deposit scheme arbitration so it could have meant court anyway even if he deducted from the deposit.



I'm hoping to avoid court as that's just useless for all concerned, but I agree with your calculations - Its use is to get someone to arbitrate over your dispute. IF you choose not to then negotiate or accept the hit.


So what's the point, or safety, of having a DPS if the LL can effectively just do as he wants anyway?? the bulk of your money has been protected, else he could have held the full deposit+part rent until you sued. The DPS is a broad solution to a nation of deposit return issues, your situation of overpaid rent is special.

Thanks for your reply, it's the clearest yet and devoid of opinion or subjective nonsense..

Stop going in circles now, theres nothing specifically prohibiting the LL from deducting damages from the overpaid rent instead of deposit. Focus on the damages claimed, agree an amount and get the LL to pay the balance to you, or sue for the same.