Moving out - how to proceed?

JohnBravo

Hi again,

In previous episode:

The property I rent is listed since November. I think there was 0 interest in it over this period, at least there was no viewings.

At the time the landlord informed me that there is a possibility of him giving me 1 month notice if the sale goes through.

Some of you corrected that according to regulations landlord has to give 2 months notice not 1 month.
Not sure if this is now back to 1 month.

In the process it has been found that the 5 week deposit is not secured in any scheme.

You said that this way the landlord broke the monthly rolling agreement.

In this episode:

In less than 2 months - after 15th of March I am planning to make a move myself.

What would you do in this case?

The next rent payment is on the 16th of Feb.

Should I send the notice to the agent without paying and stay at the property up to 23rd of March (5 weeks deposit)?

MaryNB

Your deposit should be protected. They cannot issue an S21 until they return the deposit to you.
S21 notice is 2 months which means if you don't move out in 2 months they will apply to the court for an eviction order (takes another several months for that). Until an order is issued you are legally allowed to remain at the property.

It won't go back to 1 month because it was 2 months before the pandemic, not 1 month.

You can make a claim for up to 3 times the deposit (assuming you paid it in the last 6 years) since they did not protect it.

If you are on a rolling contract and the rolling contract is mentioned in your tenancy you need to give notice in line with that - it could be 2 months that may have to line up with tenancy dates. If it is not mentioned in your tenancy agreement your notice period is 1 rental period.

JohnBravo

The contract says Break Clause: 1 Months

on the next page it says:

1(a) Tenant(s) must give 2 (two) consecutive month's notice to end the contract.

This notice must be given to expire a day before a rent payment date. If there is a break clause, notice will have to be provided on or after the break clause date / month commences.

If at the end of the tenancy tenant(s) want to continue the contract and tenant(s) and tenant(s) have not received from agent / landlord 2 (two) months notice to end the tenancy, this will carry on from month to month as a periodic tenancy.

...

1(i) Tenants cannot use the security deposit to pay rent under this agreement

...

2(b) Tenant(s) will have to serve  (two) months notice to vacate after a breakclause, by email, by hand or in the post.

The original contract was set to 10 months only and it was back in 2019 so currently it is month to month periodic tenancy.

The deposit has been paid in April 2016 so it's 5 years 10 months (almost 6 years)

but then the tenancy has changed hands from one agency to the other (the same agent but either they went under different brand or they split - but from the beginning it was the same man).

Where can I claim the deposit, is this handled in court?

So can I only give notice on the 15th of Feb (a day before next payment date) and stay up to 15th of April?

MaryNB

https://www.citizensadvice.org.uk/housing/renting-privately/ending-your-tenancy/taking-your-landlord-to-court-if-they-havent-followed-the-deposit-rules/

canaldumidi

The Break Clause is irreleant - that only applies during the fixed term.

What happens after the fixed term endes depends whether the contract specifies a Contracual Periodic Tenancy, with specified notice period, or is silent,in which case it is a Statutory Perioic tenancy with one full tenancy period notice.

See

Post 4: Ending/renewing an AST: what happens when a fixed term ends? How can a LL or tenant end a tenancy? What is a periodic tenancy?

You should

a) serve the correctnotice

b) pay rent as normal till your notice expires and

c) claim back your deposit after the tenacy ends

SuseOrm

Given how precarious the landLord‘s position is I would be expecting you to get every penny returned of the deposit.  

saajan_12

JohnBravo said:

Hi again,

In previous episode:

The property I rent is listed since November. I think there was 0 interest in it over this period, at least there was no viewings.

At the time the landlord informed me that there is a possibility of him giving me 1 month notice if the sale goes through.

Some of you corrected that according to regulations landlord has to give 2 months notice not 1 month.
Not sure if this is now back to 1 month. - no, that's via Section 21 notice, which was at 2 months from before covid,  so no expectation that period will reduce. 

In the process it has been found that the 5 week deposit is not secured in any scheme. 

You said that this way the landlord broke the monthly rolling agreement. - well no, the monthly tenancy is still valid. The LL may have penalties due to the failure to protect and his notice to evict might be invalid, but that doesn't stop the rolling tenancy from being binding. 

In this episode:

In less than 2 months - after 15th of March I am planning to make a move myself.

What would you do in this case?

The next rent payment is on the 16th of Feb.

Should I send the notice to the agent without paying and stay at the property up to 23rd of March (5 weeks deposit)? - Rental months aren't usually subdivisible, so you can't just pay 1 more week of rent. Its either the whole month upto 15th Apr or none. However may depend on the type of tenancy (SPT or CPT)

Responses in bold in line. I've taken out the bold in your post to avoid confusion. Comments on your contract snippets too below, but might be easier if you just quote in full. 

JohnBravo said:

The contract says Break Clause: 1 Months - when does this apply? A break clause is usually during the fixed term, so not applicable after the first 10 months. 

on the next page it says:

1(a) Tenant(s) must give 2 (two) consecutive month's notice to end the contract. 

This notice must be given to expire a day before a rent payment date. - okay, so you can give notice now to expire on 15th Apr at the earliest. 
If there is a break clause, notice will have to be provided on or after the break clause date / month commences. - unclear

If at the end of the tenancy tenant(s) want to continue the contract and tenant(s) and tenant(s) have not received from agent / landlord 2 (two) months notice to end the tenancy, this will carry on from month to month as a periodic tenancy.  

...

1(i) Tenants cannot use the security deposit to pay rent under this agreement - redundant clause - the contract would specify rent due on the first of the month, so can't use deposit automatically. If you don't pay rent, then the only way the LL can enforce this clause is via deposit scheme or court, when the deposit would also be discussed and a net judgement given. 

...

2(b) Tenant(s) will have to serve  (two) months notice to vacate after a breakclause, by email, by hand or in the post. - and does this 'break clause' apply after the 10 month fixed term too? If no, then irrelevant now. If yes, then that's odd wording. 

The original contract was set to 10 months only and it was back in 2019 so currently it is month to month periodic tenancy.

The deposit has been paid in April 2016 so it's 5 years 10 months (almost 6 years)

but then the tenancy has changed hands from one agency to the other (the same agent but either they went under different brand or they split - but from the beginning it was the same man).- irrelevant

Where can I claim the deposit, is this handled in court? - well you initially demand it off the LL. If they don't pay up, then in the absence of a protection scheme, yes you'd sue for it in court. 

So can I only give notice on the 15th of Feb (a day before next payment date) and stay up to 15th of April? - well you can serve it now, but earliest expiry is 15th Apr. 

The deposit non protection and notice are technically separate issues. 
Deposit- they should have protected in one of the 3 schemes. Double check each one, but if its no where then you can seek a penalty in the amount of 1-3x the deposit (on top of actually returning the original deposit). A judge would decide where on that scale, but I would guess 2x f they didn't protect but don't make an issue of returning it, while probably 2.5-3x if they also tried to unreasonably withold it. 

Notice- Please clarify if the agreement says anything about what happens AFTER the end of the fixed term (it keeps mentioning break clause which is usually during the fixed 10 month term). If it is indeed a CPT with a 2 month notice in line with rent payment dates, then if you serve notice by 15th Feb, the earliest it can expire is 15th April. You'd have to pay rent for that full period and vacate by 15th April. 

Those are the rights you both have if you stick to the agreements. However given the conflicting interests (you wanting to leave earlier and get deposit sooner, LL not wanting to pay deposit penalties), it might be easier to mutually agree on an early surrender. That can be on terms you both agree including
* termination date
* final rent payment
* deposit return amount & date
* deposit penalties to be pursued or not

JohnBravo

by looking at the definitions this agreement is SPT not CPT.
So now it's month by month but in terms of notices it remains 2 months.

I think wherever I check the break clause only applies to the fixed term not after.

I checked the schemes some time ago and nothing came up besides the landlord admitted this in text communication to cut own costs (but potentially rip me off in the end).

I understand I should ask for the deposit as soon as I give them notice not to wait till the end of tenancy.

 
I have attached anonymized copy of the agreement:
Assured Shorthold Tenancy Agreement

Contract Length: 10 Months Break Clause: 1 Months
Termination: Monday 15th June 2020

A: AGENT / landlord let out the property at;

Tenants(s) (individually and together if there is more than one) as well as the furniture, fixtures, household belongings listed on the inventory the tenant(s) and landlord sign.
The amount of rent is shown on the previous page, tenant(s) an landlord must keep to the terms below.

1 (a) Tenant(s) must give 2 (two) consecutive month’s notice (from the rent payment date) to end the contract. This notice must be given to expire a day before a rent payment date. If there is a break clause, notice will have to be provided on or after the break clause date / month commences.

If at the end of the tenancy tenant(s) want to continue the contract and tenant(s) have not received from AGENT / landlord 2 (two) months’ notice to end the tenancy, this will carry on from month to month as a periodic tenancy.

1 (b) This agreement is an assured shorthold tenancy (as defined in section 19A of the Housing Act 1988). the arrangement in section 21 of the Housing Act 1988 for the landlord to repossess the property applies to this agreement. This means that tenant(s) cannot claim any legal rights to stay on once the tenancy has ended and a court order stating tenant(s) must leave. AGENT will serve a section 21 notice giving 2 (two) months’ notice, in writing. Further information can be found should a tenant(s) consult a Housing Advice Centre, solicitor or Citizens’ Advice
Bureau who can advise tenant(s) accordingly.

1 (c) It is hereby agreed that (AGENT / landlord has the right to terminate this agreement by giving 2 (two) months advance written notice to their intension to do so when the tenancy comes to an end, by written or by hand in the post.

1 (o) AGENT / landlord will let / rent a property to tenant(s) (individually and together) whom will be allowed to reside at the dwelling.

1 (e) No unauthorised people(s) are allowed to live in the property without“ landlord permission, in writing (which AGENT / landlord will not unreasonably withhold) 1 (f) No animals are allowed in the property.

1 (9) A Security deposit has to be paid before a contract commences (Tenants(s) will not receive interest on the deposit). Deposit will be held with My Deposit’s scheme and certificate will be provided within 28 days after move in. At the end of a tenancy agreement and a dwelling been vacated, return of the security deposit could take up to 4 weeks, (as long as tenant(s) have kept to all the agreements and conditions as explained on the contract). If Tenant(s) are in breach of
the contract, landlord may take any breaches from the security deposit, any rent legally owed landlord, or other monies legally owed to landlord, reasonable compensation, or the reasonable cost of making good to any damages which was not caused by fair wear and tear. AGENT / landlord are entitled to keep the
deposit until tenant(s) have produced satisfactory proof for the utility bills (electricity, gas, water and telecommunications) for the property. If a tenant(s) fail to do so, we may pay any charges tenant(s) owe from the security deposit. I I cannot agree any amounts for any breach(s), the matter will be decided by My Deposits adjudicators.

1 (h) if the rent or any part of it shall be in arrears for at least 14 days after it becomes due (Whether formally demanded or not) or if the Tenant(s) fails to comply with any of the obligations hereunder or if a bankruptcy order is made in respect to the Tenant(s) or an interim receiver is appointed or the tenant(s) makes an arrangement with their creditors or if any of the grounds set out as Grounds 2 or 8 or 10-15 inclusive (which relate to a sale by a mortgagee or breach of an obligation by the Tenant(s) contained in the Housing Act 1988 schedule 2 apply, then the landlord may re-enter premises and immediately thereupon take possession. The tenancy shall absolutely determine but without prejudice to the other rights and remedies of either party

1(i) Tenant(s) cannot use the security deposit to pay rent under this agreement.

1 () If tenant(s) owes rent or any other money legally payable to us under the agreement, tenants(s) will have to pay interest on the amount from the date that it should have been paid. The interest rate is 3% above the Base rate used by the Bank of England. This rate may apply before, as well as after, a court judgment has been made against tenant(s), depending on the terms of the court judgment.

1 (k) AGENT / landlord keep spare keys to the property.

1 (/) AGENT / landlord may remove, store, sell or otherwise dispose of any furniture or goods a tenant(s) refuses or fails to remove from the property at the end of the tenancy. The tenant(s) shall be responsible for all reasonable costs AGENT / landlord may incur. The */ landlord shall be entitled to deduct such costs lawfully due from the security deposit

B: Tenant(s) must do the following;
2 Pay the Rent at the times and in the manner aforesaid without any deduction, abatement or set-off whatsoever. Rent must be paid on 16" day until notice is provided to state otherwise.

2(a) joint and several liabilities, tenant(s) are liable for the payment of all rents and all liabilities falling upon the tenants during the tenancy as well as any breach of the agreement. Individually each tenant is responsible for payment of all rent and all liabilities tailing upon the tenant as well as any breaches of the Agreement until all payments have been made in full. A maximum of four people can be such joint tenants without prejudice to this provision if after 14 days there is no written agreement between the person who defaults and_ Landlord to resolve the matter, and then all of the arrears will be the liability of the other joint tenants without further notice. Non-payment of the arrears by the others will render them liable. Each initial default and each subsequent default in a payment of arrears will be treated as non-payment for the purpose of Clause 1 (j)

2(b) Tenant(s) will have to serve 2 (two) months notice to vacate after a breakclause, by e mail, by hand or in the post.

2(c) Pay our reasonable costs for sending reminder letters, knocking on the door or phone calls. These will be £35 for each reminder via any method stated above.

2(d) Pay our reasonable costs for any Standing Order that does not clear. These will be £35 charge each time a Standing Order does not clear.

2(e) Keep the inside of the property in at as good a condition as it was when the tenancy started (Fair wear and tear accepted). Also, at the end of the tenancy tenants(s) must leave all furniture and fixtures (If any) in the rooms or places they were in at the beginning of the tenancy or stated on the inventory.

2(f) Repair any damage that tenants(s) have done deliberately or that was caused by the neglect or carelessness of the Tenant(s) or anyone else living in or visiting the property. This includes replacing any broken glass, windows and repairing or replacing any damaged fittings and installations. The tenant(s) here by accepts responsibility during the term of tenancy for all reasonable repairs for all electrical and mechanical appliances in the event of intentional dysfunction. If tenant(s) do not repair the damaged, we may give tenant(s) written notice asking for the repair the damaged within a reasonable period of time, depending on the repairs that need to be done. If the tenant(s) fail to do so, within a period of notice given, AGENT / landlord may then enter the property (after giving tenant(s) 24 hours’ notice, in writing) and carry out the necessary repairs tenant(s) will have to pay AGENT / landlord for the reasonable cost of
the work.

2(g) pay all charges with respect to any electric, gas and telephonic or television services used at or supplied to the Property and Council Tax or any similar tax that might be charged in addition to or replacement of it during the Term

2(h) take reasonable precautions to prevent frost or similar damage to the property. If the property is left empty or for more than 12 hours when the weather is likely to be cold, you must leave enough heating on to prevent the water system freezing.

2(i) whenever tenant(s) leave the property unattended, tenant(s) must lock all the doors and windows and put the burglar alarm on (if any). Tenant(s) should notify AGENT / landlord in writing if the property is going to be empty for more than 7 (seven) days in a row.

2(j) If tenants(s) give landlord notice that tenant(s) are going to leave / vacate the property before this agreement has ended, tenant(s) must pay a reasonable costs relating to the property as well as paying the rent until a new tenant(s) are replaced.

2(k) Allow AGENT / landlord / contractors to come into the property at all reasonable hours of the day to inspect the condition of the property, to carry out repairs or to do other work which must be carried out by law. AGENT will give tenant(s) at least 24 hours’ written notice if landlord 7 contractors are going to enter the property. Tenant(s) must let MOrd / contractors enter the property immediately for any emergency work.

2() AGENT / landlord about any repairs or faults landlord are responsible for, structure or outside of the property, in any installation or in the shared areas.

2(m) if any parking space is provided on the let / rent of the property, vehicles can only be parked on bays or space(s) provided without causing any obstruction to others.

2(n) pay the reasonable costs for replacing locks if tenant(s) fail to return any key.

2(0) Pay any reasonable cost getting replacement keys.

2(p) Allow new tenants and prospective purchasers to look at the property with 24 hours’ written notice during the last 2 (two) month of the tenancy.

2(q) is jointly and individually responsible for paying all the rent tenant(s) have to pay under this agreement and keep to all the terms of this agreement.

2(r) Defrost the fridge when necessary. Tenants(s) will be responsible for the reasonable cost of making good any damage that is caused by tenant(s) actions or inactions.

2(s) be responsible for looking after the garden, balcony or any outside space provided. It must be kept tidy and properly cultivated with any grass cut regularly, but tenant(s) do not have to improve the garden, balcony or outside space.

2(t) at the end of the tenancy the dwelling including carpets (if any) have to be professionally cleaned. The property has to be left with the fixtures and fittings (if any) in a good condition as at the start of the tenancy (fair wear and tear accepted) and free from rubbish provided the landlord has professionally cleaned the property and carpets at the commencement of the tenancy

2(u) Al articles belonging to the Tenant kept in the Premises are not covered by the Landlord’s Insurance policy and it is the Tenant's responsibility to effect insurance in respect of them.

C: Tenant(s) must not do the following;
3(a) Alter or add anything to the outside or structure of the property, or the furniture, fixtures and

household belongings that are on the list that tenant(s) and m landlord signed. Tenant(s) must not bring into the property any furniture, fixtures or household belongings which do not meet the furniture and furnishings fire safety regulations. Tenant(s) can get information about these regulations from your local Trading Standards Office.

3(b) anything which may be a nuisance or annoy neighbours. Tenant(s) must not play any radio, CD, record player, television or musical instrument in a way that will cause a nuisance, annoy the neighbour’s or be heard outside a home between 10.30pm and 7.00 am.

3(c) Bring bicycles, motor cycles, into the property without AGENT / landlord permission, in writing (which we will not unreasonably withhold).

3(d) bring any furniture into the house without AGENT / landlord permission, in writing (which AGENT / landlord will not unreasonably withhold).

3(e) Tamper with any fire precautions.

3(f) Hang pictures or posters on walls without AGENT / landlord permission, in writing (which AGENT / landlord will not unreasonably withhold).

3(g) Use Blu-tac or any similar type of adhesive on the walls.

3(h) Sublet the property or any part of it, or gives up the property or any part of it to anybody else.

3(i) Transfer the tenancy to anybody else without AGENT / landlord permission, in writing (which ‘ landlord will not unreasonably withhold).

3(j) Carry on any profession, trade or business in the property.
3(k) Display any permanent notice on the property
3(l) Use the property as anything other than a home.

3(m) Block, or allow guests to obstruct, any of the shared areas.

3(n) Dry washing inside the property, except in a ventilated room suitable for such purposes.

3(0) Use any paraffin or portable gas heater.

Landlord agrees to do the following;

4(a) Keep the property insured against fire and other usual comprehensive risks as long as insurance Cover is available.

4(b) Let tenants(s) have free access to the steps, entrance hall, stairs and all shared areas and keep those areas clean, light and in good condition.

4(c) the tenant(s) deposit will be held with AGENT / landlord and registered with TDS (tenancy deposit Scheme). The tenants deposit will be safeguarded by My Deposit Scheme a certificate will be provided within 28 days of a move in.

4(d) be responsible for servicing and maintaining any gas heating system and making sure that all gas appliances within the property are checked by a gas safety-registered technician every
year, in line with the Gas Safety (Installation and Use) Regulations 1994

4(e) An Energy Performance Certificate (EPC) will be provided with regulations put in place October 2008.

4(f) Be responsible for making sure that any furniture_ landlord provide keeps to the Furniture and Furnishings (Fire) (Safety) Regulations.

4(g) Give back any part of the rent that tenant(s) have paid for any period that the property could not be lived in because of fire or any other danger that landlord are insured for.

4(h) Keep the structure and outside of the property in good repair.

4(i) Keep the gas, water, electricity, space-heating and water-heating installations in good repair and proper working order.

Both Parties agree to do the following:

5(a) notice is hereby given possession might be recovered under the grounds of section 1, schedule 2 of the housing act 1988 if applicable i.e. If the landlord used to live in the property as his or her main home, or intends to occupy the property as his and her only or main home.

5(b) the tenancy may be brought to an end if the mortgage requires possession on default of the borrower underground 2 schedule 2 of the housing act 1988

5(c) If after signing this agreement, tenant fails to take possession of the premises, Tenant(s) will still be responsible for paying rent and complying with all other terms on this agreement

5(d) the property is let together with the special conditions (If Any) listed on the rider sheet.

JohnBravo

To be honest I don't want to stay till mid April so I would try to settle this earlier.

Landlord pays the deposit and I leave mid March.

If no agreement then I will seek compensation in court.

JohnBravo

Should I request the deposit when I file a notice mid Feb or after the tenancy?

Actually should I request as part of the notice since I know it's not secured?

canaldumidi

You have two options regarding end date.

1) tea and cake. Have a friendly chat and reach an agreement. Provided you both agree you can end the tenancy on whatever date you want and on whatever terms you agree eg tomorrow, with full deposit returned and rent paid pro rata to tomorrow's date. Get any agreement in writing.

2) serve proper notice. This must be a full tenancy period ending on 15th of a month eg serve on/before 16th Feb to expire on 15th March. You request your deposit back on the date the tenancy ends (eg 15th March).

As for the deposit, you have 6 years to claim the penalty via the courts, so no rush! You could wait and see if the LL returns the deposit without hassle and then decide what to do. If he suggests deductions, remind him he's liable for the penalty of 3 times the deposit and likely he'll return the deposit in full. If he does, you might decide that's great, no need to have the hassle of court, or you might decide to go to court anyway.

You could also use the failure the protect the deposit, and possibiltyof penalty, as part of your 'tea & cake discussion (1 above!) to encourage him to be flexible over the tenancy end date.