Landlord wants to keep the holding fee to use as final month's rent, this was not previously agreed

badgermog

Viewed a room in July which was available to move in from 1st Sept. Paid the LL one month's rent to hold the room ahead of moving in. LL said he would draw up the tenancy agreement ready to sign upon moving in. 

I moved in on 1st as agreed upon, LL said he would be round the following week for tenancy agreement to be signed. Yesterday (10th Sept) I receive a text from him asking for September's rent and for the contract to be signed. This was completely unexpected on my behalf, the idea that the money already paid would be anything other than September's rent was never communicated (and I wouldn't have agreed to such a request either). I replied to LL that I understood the money already paid in July to be September's rent. He is standing by the idea that I owe him rent for Sept and let me know that the tenancy agreement is in the hallway (this was the first I had heard about that on 10th Sept).

Taking a look at it, included on a separate page (ie. not actually part of the tenancy agreement) is a note explaining that I paid one month's rent in July which then becomes the final month's rent (whenever that is), and that one month's rent is also payable on start of tenancy. I offered to sign and return a tenancy agreement weeks ago, before ever moving in, so that issues like this might be avoided. I suspect the tenancy agreement was withheld for this reason though, I would never agree to pay a month's rent and the same again upon moving in.

Surely a holding fee is refundable upon moving in, once the holding period is over? Am I right in sticking to this principle and requesting the money be used as September's rent? 

Note: the money paid in July was only ever referred to (in a text from LL to me) as "one month's rent to hold the room". 

DE_612183

It sounds like what you have paid is a deposit - so what I'd do is ask if your deposit is being held in recognised deposit protection scheme.

propertyrental

well if you've not yet signed the TA, refuse to sign it until it clearly states the advance rent you've paid is the 1st month's rent.

Have you also paid a security deposit? If so, has this been protected and the PI given to you?

as you've already moved in, and paid a months rent, you already have a legally valid AST, its just a verbal not written one which is to your advantage as there are no agreed written terms!

badgermog

propertyrental said:

well if you've not yet signed the TA, refuse to sign it until it clearly states the advance rent you've paid is the 1st month's rent.

Have you also paid a security deposit? If so, has this been protected and the PI given to you?

as you've already moved in, and paid a months rent, you already have a legally valid AST, its just a verbal not written one which is to your advantage as there are no agreed written terms!

LL came around this afternoon so we could sign the TA together. I stated my position and we went back and forth not really getting anywhere, he insisted that if I did not pay a month's rent for Sept then he would not sign the TA and this would be my final month at the property. I was essentially strongarmed into his demands, I have now signed a 6 month TA and a separate document stating that the one month's rent I paid back in July "becomes the final month's rent of the tenancy (whenever that is)" and that I will pay him a month's rent for Sept by end of day tomorrow.

I'm not comfortable with any of this but felt I had no choice. Where do I stand on rejecting the idea that I have to wait until the final month of the tenancy in order to recoup the holding fee? Will I run into trouble if I insist the LL use it as September's rent now that I've signed that weird agreement?

There was/is no security deposit associated with this rental. The only money I have paid to date is the holding fee which was equal to one month's rent.

propertyrental

Of course you had a choice. As I said, you had a valid (verbal) AST. 

 he insisted that if I did not pay a month's rent for Sept then he would not sign the TA and this would be my final month at the property. 

the only legal way he (or the LL would have been able to evict you would be by serving a S21 Notice (which cannot be done in the 1st 4 months) giving you 2 months notice (so 6 months total) and even then still has to apply to court (2  more months?) for possession order.

Which property ombudsman scheme does the agent belong to (by law must belong to one of them)? Put in a complaint, initially following the agents internal complaints procedure (head office? check their website) then to the ombudsman.

Mr.Generous

Look for somewhere else, when you find somewhere give a months notice and pay nothing.

badgermog

propertyrental said:

Of course you had a choice. As I said, you had a valid (verbal) AST. 

Yes, I suspected this but I wasn't 100% sure and after half an hour of him insisting this would be my final month at the property if I didn't concede to his demands I caved in. If I had read your comment first or had more time to seek legal advice then I might not have.

I don't know which property ombudsman scheme the LL belongs to, and if this whole holding deposit thing is unlawful then what's to say he's not also breaking the law by not being registered with a property ombudsman scheme? Can I find ou without directly asking him?

Thank you for your continued advice on this.

propertyrental

the agent has a website? In most cases this should state which ombudsman scheme.

Is he actually a professional agent, or just someone acting as the LL's agent (eg the LL's mum)?

TPOS (the biggest scheme)has a webpage to check agents:

https://selfserve.tpos.co.uk/is-the-property-agent-a-member-of-our-scheme/  

Nearlyold

propertyrental said:

the agent has a website? In most cases this should state which ombudsman scheme.

Is he actually a professional agent, or just someone acting as the LL's agent (eg the LL's mum)?

TPOS (the biggest scheme)has a webpage to check agents:

https://selfserve.tpos.co.uk/is-the-property-agent-a-member-of-our-scheme/  

Unless I've misread something I can't see where the OP has mentioned an Agent, I read it as the OP dealing direct with the LL.

propertyrental

Nearlyold said:

propertyrental said:

the agent has a website? In most cases this should state which ombudsman scheme.

Is he actually a professional agent, or just someone acting as the LL's agent (eg the LL's mum)?

TPOS (the biggest scheme)has a webpage to check agents:

https://selfserve.tpos.co.uk/is-the-property-agent-a-member-of-our-scheme/  

Unless I've misread something I can't see where the OP has mentioned an Agent, I read it as the OP dealing direct with the LL.

You're right. My bad.

There may be another way to go. OP said:

Note: the money paid in July was only ever referred to (in a text from LL to me) as "one month's rent to hold the room". 

If you have evidence (the text) of this, it would be illegal under the Tenant Fees Act 2019 which limits holding deposits to 1 weeks rent.

The gov guidance to LLs and agents is here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/922898/Tenant_Fees_Act_2019_-_Guidance_for_landlords_and_agents.pdf

The guide also tells tenants how to reclaim illegal payments (eg an excessive holding deposit).

And the Act itself is here:

https://www.gov.uk/government/collections/tenant-fees-act

doodling

Hi,

badgermog said:

propertyrental said:

well if you've not yet signed the TA, refuse to sign it until it clearly states the advance rent you've paid is the 1st month's rent.

Have you also paid a security deposit? If so, has this been protected and the PI given to you?

as you've already moved in, and paid a months rent, you already have a legally valid AST, its just a verbal not written one which is to your advantage as there are no agreed written terms!

LL came around this afternoon so we could sign the TA together. I stated my position and we went back and forth not really getting anywhere, he insisted that if I did not pay a month's rent for Sept then he would not sign the TA and this would be my final month at the property. I was essentially strongarmed into his demands, I have now signed a 6 month TA and a separate document stating that the one month's rent I paid back in July "becomes the final month's rent of the tenancy (whenever that is)" and that I will pay him a month's rent for Sept by end of day tomorrow.

I'm not comfortable with any of this but felt I had no choice. Where do I stand on rejecting the idea that I have to wait until the final month of the tenancy in order to recoup the holding fee? Will I run into trouble if I insist the LL use it as September's rent now that I've signed that weird agreement?

There was/is no security deposit associated with this rental. The only money I have paid to date is the holding fee which was equal to one month's rent.

A lot depends on your approach to confrontation.

You could send something along the lines of the letter at the bottom of my post but it is a little aggressive and won't be a very good start to your tenancy.  If you send it you can expect a section 21 in 4 months time with legal action to evict you starting in 6 (if you haven't already left at that time), assuming a vaguely competent landlord.  Note that by sending something like that you are also admitting there is a tenancy so you are on the hook for 6 month's rent, even if you leave after a week.

Or, you could go down the route of claiming back the unlawful holding deposit - I'm not quite sure where that would leave you when the dust settles.

Or, you could agree with the landlord that you both have differing views of what was agreed and agree with them that you will move out with you finding somewhere else to stay ASAP.

Or finally, you could just accept where you have ended up and put up with it.

<<<

Dear Landlord,

We had a discussion yesterday where you stated that if I did not sign a document confirming that the rent I paid in July becomes the final month's rent of the tenancy then you would not sign an AST and would force me to leave the property.

Now that I have a better understanding of the law, I realise that as I have paid rent and am occupying the property I already have an AST (albeit a verbal one) and thus it is unnecessary for you to sign any further documents.  I also understand that any threat to force me to leave and any attempt by you or your agents to carry out such a threat would be a criminal act (the police will be notified if that occurs).  The document you asked me to sign yesterday with respect to the holding deposit and the final month's rent was signed by me under duress and I completely refute the contents, whilst noting that it is evidence that an AST exists, should such evidence ever be required.

I also note that the use of the holding deposit as the final month's rent was never part of our original agreement prior to me moving into the property and that you took a holding deposit of one month's rent when by law holding deposits are limited to a maximum of one week's rent.

I shall be treating the money already paid as the first months rent and will pay the next payment on the xx as per our agreement, before your attempt to modify it.

Please do not hesitate to contact me if you have any questions.

Best Regards,

Tenant.

>>>

Of course, if the landlord is foolish enough to actually try and throw you out then you need to call the police.  I would keep copies of all correspondence to hand in case that happens, with the originals in a safe place (ideally not at the property).