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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69359
Experience:  Over 5 years in practice
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I have a deposit being withheld by a managing agent on a property

Customer Question

I have a deposit being withheld by a managing agent on a property I leased. I originally gave 1 months written notice to terminate on 28th December 13. In early December 13 I called to say I could not give vacant possession on that date as my tenant refused to move and I had applied for a court order the court date set for 9th January 2014 and wished to postpone the hand back date. I believed that this was a postponment of my written notice and that the original notice wold still be in place. The managing company now state that this notification was a complete retraction and they state that I was told this and that I would need to give another month's written notice when I knew the leave date.There is no email verifying this to be the case and I deny that I was told this. The tenant vacated on 16th January and the furniture was removed a few days later. As I had paid rent until end of January 14 I contacted them around this time but they will only accept that I contacted them on 30th January 14 asking to hand back the property and the keys. I was notified that their checkout agents would call me to arrange a date and I accepted that my tenancy had ended on 30th Jan 14. I did not hear from this company and made at least 2 further phone calls to the managing agents to ask why I had not been contacted. Eventually I was contacted by another company and a hand back date was booked for 19th February 14 for what I believed to be keys handback and checkout. On 19th I was met at the property but told this was only hand back of keys and the checkout was booked for 26th February 14. The agent who collected the keys told me they had only been instructed by the managing agents on 14th Feb. During this time from 30th Jan which included phonecalls to the managing agents there was no mention of my needing to give a further 1 month's written notice which would only start on this date or indeed any failure on my part to have done so or any indication of when the tenancy would be brought to an end 1 month from that date. I believed the postponement had been accepted and the tenancy would end on 30th Jan as this was my notification date. The managing agents are now claiming several things: 1. The original written notice had been completely retracted. 2. I am contractually obligated to give another 1 months written notice from the date I called on 30th Jan. 3. That although this is a contractual obligation to give this written notice the company had decided not to ask for this to be done as they had discretion to override this requirement if they chose to and which they are now saying they did. 4. They are charging me rent until I was finally able to return the keys on 19th February even though the delay from 30th Jan to 19th Feb was their choice. 5. They are claiming that they could also charge rent until the checkout was carried out on 26th February but that they had chosen to 'do me a favour' as they 'felt for my situation' by not insisting on the new written notice which would have meant the contract lasted until end of Feb 14.
I maintain that they cannot have the situation both ways by insisting that my postponement of the original written notice equated to a retraction (which went unconfirmed by them in writing) and then state that the 1 month new notice that began on 30th Jan 14 did not require a written notice and they have discretion to not require this and they were allowing me to leave earlier than 1 month on 19th Feb when keys went back.
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

How can I help with this please?
Customer: replied 2 years ago.

I need to have clarification if the original notice period should have remained with the postponement I requested or that I should have received a written reply stating that this had been completely retracted and that a new notice period would be required. And clarification as to whether I should have been asked for this in writing when I called to hand back the property on 30th Jan and if they can now claim I was responsible for rent from 30th Jan and indeed up to 19th or 26th Feb because this was still part of the new notice period

Expert:  Jo C. replied 2 years ago.
In short, you couldn't comply with your notice date and you told them that verbally?

Does your contract demand written notice?
Customer: replied 2 years ago.

I could not comply with original notice date as the sub tenant refused to vacate. They were phoned to notify them in early December and I would have told them a court date had been set for 9th Jan 14 with the tenant being moved by end of Jan 14. There was no mention of having to give a further 1 month written notice because this notice was now fully retracted. If I had been told this I would have sent a further brief email confirming a net date no later than end of Jany 14.

Expert:  Jo C. replied 2 years ago.
Thanks.

What I need to know is whether your contract demanded written notice?

Why you could not comply is immaterial.
Customer: replied 2 years ago.

Yes the contract demanded written notice of 1 month which they were given the first time for 28th Dec 13.


No further new notices were discussed or requested by the company.


I believed I was postponing a written notice rather than retracting one and they owed me a duty of care to be clear on the consequence of notifying them I could not hand back on the original date

Expert:  Jo C. replied 2 years ago.
I am sorry but you are in difficulty here. They have no such duty I'm afraid.

Did they ever agree to postpone notice?
Customer: replied 2 years ago.

My phonecall to the manager was to delay the handback and not retract, but this manager is now saying he told me in that call I would have to give another written months notice.

Expert:  Jo C. replied 2 years ago.
Yes, but what was his actual reaction?

What he is saying now is obviously something that will have to be dealt with at court but what actually did happen?
Customer: replied 2 years ago.

I called him in person because he had sent me an email confirming that I wished to vacate the property on 28th December 13.


I had consent to sublet to my tenant and I called to say I was having to evict the tenant as she would not agree to leave by 28th December and had a court date for 9th January and that I would let them know as soon as I would be able to hand back the flat with vacant possession following the court date. My recollection was that I would do this and this was acceptable but I do not recall being told I would need to give new written notice. If I had been told this I would have sent another notice for the end of January 14.

Expert:  Jo C. replied 2 years ago.
Ok. Thanks. I just need about 10 mins to type out an answer if thats OK?
Expert:  Jo C. replied 2 years ago.
Thanks

There are certainly several arguments to be had here.

Ignoring the dates for the time being

If the tenancy agreement requires you to give notice in writing then you obviously have to give it in writing.

It is not unreasonable therefore to assume that if you are going to postpone it or withdraw it, that also has to be in writing.

You did not do that and therefore your postponement is actually not effective.

I do not believe that the agent can insist in the tenancy agreement that you give notice in writing but can agree when it suits them that you can withdraw it verbally, and that cancels the original one.

If there is no requirement for it to be in writing, it then comes down to the construction of your instruction on December 13 where you called and said that you wish to perspire only hand backdate.

Cancelling it and perspire owning it are two different things.

However if you did not postpone it with a future date, it would clearly be unreasonable for the date to be postponed indefinitely.

This is of course subject to the point I made earlier with regard to the postponement being in writing.
There then arises the issue of the delay between handing the keys back and the checkout.

This is a totally unacceptable delay in my opinion.

There is no reason why, it seems, that you could not have given the keys back on 14 January although I do not know why you did not do so.

The correct thing would have been two of given them the keys back at that time physically not in the post.

For some reason, you didn't take the keys back and they didn't chase you.

Eventually, the keys were not handed back until 14 February and that in my opinion is when the tenancy ends.

The fact that they didn't do the checkout until some weeks later, is their fault.

I don't think you can blame them for the fact that you did not physically give them the keys back.

So the situation is that if they will not give you your deposit back, you either file a dispute with the tenants deposit scheme or sue them in the Small Claims Court to get it back and let the judge decide the issue based upon the points that I have made above.

I think you have a good case to get your money back but the ultimate decision would come from the judge

Can I clarify anything for you?

Jo
Customer: replied 2 years ago.

Hi Jo,

 

Can I confirm my argument to the agents,which you have clarified above, in the terms that I agree that I verbally perspired the handback date and did not cancel the notice itself , as it was always clear that I would hand the flat back as soon as I had vacant possession after the court decision. I confirmed in my call to the managing agent yesterday that I considered that they should have written to me to confirm that in their eyes I had cancelled the notice completely and that I would be required to give another full month's written notice and not just saying that they told me in that phonecall only, which I am disputing anyway.

Regarding the keys handover. I called on 30th January to ask to give the keys back and to end the tenancy on that date and I was told I would be contacted by another agent they used to do this handover and the checkout. I chased the agent at least twice to ask why I had not been contacted and eventually I received a call with a date to meet at the property and do the handover of keys only on 19th February when I had been asking since 30th Jan.

I was told at one point that I had not given written notice of one month but I disputed this and forwarded the email from the manager sent to me in December acknowledging my notice and which I considered to be my written notice and pointed out the subsequent verbal deferral which they appeared to accept at that time.

I therefore considered the 30th Jan as my end date but they are now saying that my call on 30th Jan was the beginning of a new 1 month notice, although this was now verbal. They now state that the notice period does not have to be written and can be verbal at their discretion and are now saying that they 'allowed' the end date to be 19th Feb as a 'favour' when the keys were handed back but that it should be the end of February or 26th Feb when the checkout was done again which I am disputing.

I agree that either these notices have to be in writing or not and they cannot change the conditions when it suits them: ie that a phonecall to defer can mean the notice is completely cancelled and that a phonecall to hand keys back and end the tenancy becomes the beginning of a 1 month verbal notice period that I did not consent to.

Can you also confirm that if indeed the first written notice was not cancelled by my phonecall as you say it should have been in writing to do this , then what are the ramifications of it not being handed back on 28th Dec but the flat actually being back until the 30th Jan when I asked to hand keys back? Also I had paid rent until the end of Jan 2014 when I considered it to have ended.

Expert:  Jo C. replied 2 years ago.
I agree with the points you make. The fact that they may not have been able to take the keys off you because it did not suit their system or do check out until sometime in February is their problem.
You offered them the keys back at the end of January and therefore in my opinion, that is when the tenancy ended because the original notice was still effective because it had not been postponed or withdrawn in writing.

However unless the agent is prepared to listen to this argument which appears to be the case, you are faced with suing the landlord and/or filing a deposit dispute

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