Can letting agent keep the holding deposit if we pull out in these circumstances?

Tank40

Sorry for the long post. Daughter found her perfect flat (due to her needs it has to be self contained with no shared facilities), not far from Uni, no deposit, a good weekly rent and bills (gas, electricity, water, internet) included as stated on the website.

Our son had had an issue with his student accommodation inclusive bills deal due to increasing energy prices so we asked her to contact the LA if there was any ceiling on the inclusive bills and also to clarify the deposit situation. Their words were:

• This is based on a fair usage policy, however no one has ever previously gone over this as it is quite generous
• Yes the wifi is included in the bills
• There is no deposit, just a £99.00 advanced rent payment which is deducted from the first rent instalment [TBF, it is referred to as a holding deposit elsewhere, including the property adverts]

Holding deposit of £99 was paid after registration and only then was the DocuSign tenancy agreement including guarantor sections emailed to daughter. It had her name misspelled so she got them to send a corrected one which after she signed it, was forwarded to us to countersign. It was at this point we realised the agreement was asking for a £350 contribution towards utilities (LL would also contribute up to £350 and anything over £700 would be paid by tenant) plus £25 pcm for internet.

Initially I could not get through on the phone, so emailed them. Then I managed to speak to someone in their office, when I said we thought we'd been misled and I don't think we (meaning my daughter and myself as guarantor) want to go through with this as it is not as advertised or agreed in emails, they said it wouldn't be possible to refund £99 anyway as it was non-refundable. She appeared to consult someone before stating this.

Anyhow, later that day, the the LA manager emailed saying:

"We have looked into your email and would like to apologise for the confusion and inconvenience here. We can see the link the [your daughter] enquired through...does state all bills are included.

However on our actual website and on Rightmove, it states the bills are included once the 1 off utility fee payment of £350.00 has been paid.

This is an error on our part and we will get the website updated. As this is an error on our part, we would like to offer the studio at the rate of the enquiry, which was all bills included if you do wish to still go ahead with the booking?"

Their website is under construction, so you can't see any properties but it's true, it does state that on RM but not on the website my daughter found it on, which as you can see, they admitted.

After asking for a corrected contract later that day (perhaps they were about to send it anyway) we found a couple more possible 'mistakes' but more importantly some clauses which we thought were unreasonable. Undoubtedly they were in the original contract but I don't think we checked it that far. I imagine some are probably quite frequently used in tenancy agreements.

• in the termly payments schedule, the £99 holding deposit wasn't taken off the first payment
• the end of tenancy inspection taking place up to 28 days after moving out when [my daughter] will not be present to sign off any issues found
• she will be jointly and severally liable for other tenants' rubbish throughout the tenancy and for damage to common areas which she may not even use
• the tenant must pay the bills from the start of the tenancy but nowhere does it actually state that bills are included
• should there be a problem with the utilities, the landlord will not be subject to any compensation claims
• tenant must have insurance for landlord fixtures & fittings etc
• a £350 deposit will be held by DPS. Nowhere does it state that this does not apply.

I could not see the TA until my daughter had signed it and she could not see the exact TA terms until she paid the £99, so my question is, can they insist on keeping the holding deposit after all the mistakes and the clauses we couldn't see unless holding deposit was paid? We wouldn't have recommended our daughter reserve the property with the information we have now and frankly we don't want to be held to ransom for "damage & bills" when the tenancy ends as compared to the terms they thought were advertised, they would be out out of pocket by £750.

anselld

Some of those things are normal (eg joint and several liability for communal areas) however, I think under the tenant fees act ...

(1)  It is not legal to charge a fee in respect of utilities

(2)  It is not legal to charge a fee for internet

(The above can either be included in rent or not)

(3)  It is not legal to require a tenant to enter into an insurance contract with respect to the tenancy

(4)  The draft contract should be provided before taking a deposit ( not sure if that is law or just guidance)

(5)  The holding deposit should be returned if the L and T fail to enter into an agreement within two weeks through no fault of the tenant ( this would include missleading info given, unreasonable behaviour or contravention of the act as per 1..3)

They sound like idiots.  Better off out and argue the £99 later.

deannagone

Yes, if you and your daughter continue, it sounds like there will be a lot more than £99 at stake.  And given the contract is in such a state.., how can it be assumed the building/tenancy will be run any better?  

Tank40

deannagone said:

Yes, if you and your daughter continue, it sounds like there will be a lot more than £99 at stake.  And given the contract is in such a state.., how can it be assumed the building/tenancy will be run any better?  

Exactly. It feels like they've decided to honour the details in the original advert to keep us hooked in and we fear the bill payments at least £650+ they or the LL will be out of pocket by at the end of the tenancy will be recouped through the usual means.

In and of itself that seems to make it "unreasonable to expect the tenants to enter into an agreement", according to the Property Redress Scheme guidance, of which the LA is a member.

propertyrental

Some of these are acceptable (eg joint and several), some are illegal. You have 2 choices

1) go ahead, then argue of the illegal terms/fees, using the Tenants Fees Act complaints process
2) walk away and threaten to use the Act, and/or relevant ombudsman (which scheme do they use?) unless you get a full refund.

Your decision may be influenced by
a) how many suitable alternative properties there are and
b) how much hassle you are willing to take on

Tenant Fees Act 2019: guidance for tenants (updated September 2020)