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LondonlawyerJ
LondonlawyerJ, Advocate
Category: Law
Satisfied Customers: 814
Experience:  Solicitor with over 15 years experience.
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Dear Solicitor, I am renting a flat, a shorthold rental

Customer Question

Dear Solicitor,

I am renting a flat, a shorthold rental agreement. Due to the countless defaults from the side of my agency and unacceptable behaviour from the side of the very landlords, I do not have anymore reason for trusting them, in particular that they would return my deposit timely and in its entirety.

Now, the agreement is due to end in less than two months, and I have decided that I will be covering part of the rent with the corresponding value from the deposit. I am wondering what risks I am running if there are really any at all, or, if that is absolutely advised against, what measures I could take to ensure that I will recover my deposit without incurring in further expenses.

Thank you.
Submitted: 3 years ago.
Category: Law
Expert:  LondonlawyerJ replied 3 years ago.

LondonlawyerJ :

Hello I am a solicitor with over 15 years experience. I will try to help you with this.

LondonlawyerJ :

Is your deposit held in a deposit guarantee scheme?

Customer:

Hello, yes it is.

Customer:

My worries is that they could make it difficult if not expensive to anyway recover it.

Customer:

There is more to it: I have not in fact ever signed the paper document for the deposit protection scheme.

Customer:

Please consider that I am Italian and not really aware of what is binding or not relative to verbal agreements vs. signed paper. My agency definitely puts deposits under the deposit protection scheme as a practice, or so they declare.

LondonlawyerJ :

Have you been told that the deposit is in a scheme and do you know which one?

Customer:

Please give me a moment, looking into my documentation...

Customer:

I do not anymore have access to that document which of in the form of an online document and have in the meantime been voided so I cannot even see it.

Customer:

My contract says in a section that:


The deposit is held by the Agent as Stakeholder. The Agent is a member of the Tenancy Deposit Scheme.

LondonlawyerJ :

OK if you give me a moment I will draft your answer now

Customer:

OK, thank you.

LondonlawyerJ :

 


I think that is a sensible concern for you to have. If there is a dispute – and your landlord could raise a dispute without merit if he were so inclined- then there could be a delay in recovering your deposit as your go through the scheme’s alternative dispute resolution system.


You should check your agreement and see if there is a clause requiring you to give notice if you intend to leave at the end of the tenancy. This is not a standard clause in assured shorthold tenancies but you should check anyway. It is probably a good idea even in the absence of such a term that you give notice of your intention to leave at the end of the tenancy. You may think it a good idea to tell the landlord what you intend to do and tell him that you will be writing to the deposit scheme to inform them that they can pay the deposit to him when your tenancy ends or alternatively offering to forward it to him the moment you receive it from the scheme


Refusing to pay your rent to the extent that it uses up your deposit is obviously in breach of your tenancy agreement and will be in breach of the deposit scheme rules which you have either signed up to or are deemed to have accepted by joining the scheme. However the question is what can your landlord do about it?


In reality there is not a great deal your landlord can do. If there is no damage to the property while you have lived there then he will not be entitled to keep the deposit. If you are leaving at the end of the tenancy agreement he will not be able to get a possession order before you have left anyway. His possible action against you would be for financial losses incurred as a result if you beaching the contract. If he recovers his deposit in full and in good time then his losses may be small (eg just interest costs).


Your landlord may also claim that there has been damage to the property and that he is entitled to make a deduction from your deposit to cover this. In this case he could bring a money claim to recover sufficient from you to compensate him for the damage. If there has been damage you should negotiate an amount with the landlord. I am assuming that there is no damage.


In either case you should get evidence about the condition of the property before you leave. This may involve taking photographs and inventories etc. If there is anyone who has been a frequent visitor throughout your tenancy they may be able to give helpful information if a dispute arises.


However your landlord may suffer bigger losses, for example if he is unable to meet his mortgage payments because of your default. Then he may suffer considerable losses (eg penalty payments, or loss of preferential interest rate if he has one).


In short you can withhold rent to the value of the deposit to protect your position but you will be in breach of contract and will be running a probably small risk that he will suffer losses as a result of this. These losses could form the basis for a money claim against you.


It is also unlikely that your landlord or the agent will give you a reference for your next landlord.


You will need to decide if the risk of being kept away from your deposit is greater than the risk of withholding your rent.


I hope this answer is helpful.

Customer:

Thank you, XXXXX XXXXX already very helpful: could you please clarify a final points?

When you say that "It is also unlikely that your landlord or the agent will give you a reference for your next landlord", do you exactly mean that they would give no references, or that they would give bad references if asked for? (In other words, I am not sure how I could put this to my next prospective landlord or agency: that things went wrong so there is no reference they can get, or that things went wrong so references would be bad.)

Expert:  LondonlawyerJ replied 3 years ago.
Yes the landlord is likely to give a bad reference or refuse to give a reference at all. You know your landlord better than I but there must be at least a strong risk of this. This might well give you problems with your next prospective landlord. It is another thing to put in the balance in deciding what to do.
LondonlawyerJ and other Law Specialists are ready to help you
Customer: replied 3 years ago.

My apologies, I'd actually have a very final question:

 

Should my agency now start asking for fines related to their supposed attempts to recover the rent, which I am expecting they would do, can I safely ignore these?

 

---------------------------- Sorry, please disregard the above as I didn't know this would actually count as a brand new question. I am getting in contact with customer services to have this deleted.

Expert:  LondonlawyerJ replied 3 years ago.
In English contract law a person bringing an action for breach of contract is only entitled to be compensated to the extent that he has suffered loss. If her is penalty clause in the contract this will be unenforceable. The word "fine" should have no place in this situation as fines are only relevant as a punishment in criminal cases.

I hope this helps. I apologise for the slow response but I have been very busy and away from this site.