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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70416
Experience:  Over 5 years in practice
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Good afternoon. I am renting a residential property in Eye,

Customer Question

Good afternoon. I am renting a residential property in Eye, Suffolk with effect from 1st Feb under an Assured Shorthold Tenancy Agreement. I work in Dubai and am retiring to the UK, I visited the UK 4 months ago for a week with the sole purpose of finding a house to rent in Suffolk and this property fitted the bill.The rental agency had just commenced business and although charming, seemed slightly clueless. I am not a lawyer but hold a law degree and work in insurance.I paid an admin charge of 275 and agreed a 6 month let at 650 per month,paying 6 months rent in advance.The agent asked for a retention fee based on 75% of the monthly rent equating to 487.50 for 4 months (3,900) which I also paid up front. the agent has now asked for payment of the agreed deposit of 750 but has not mentioned the retention fee which as far as I can see is the same as a 'holding deposit'. I have read the Gov UK paper on 'tenancy deposit protection' which states that 'holding deposits'do not have to be 'protected' by the landlord under one of the approved schemes but that as soon as I become a tenant the holding deposit becomes a 'deposit' which the landlord must protect. By interpretation I gain the impression that the holding deposit of 1950 should be returned to me because I am proceeding with the tenancy and have not reneged. I have read elsewhere that 'holding deposit's usually equate to one weeks rent,which makes 4 months at 487.50 an extortionate sum.Where do I stand legally? why cant the agent simply take 750 deposit from the 1950 and return the balance? Your earliest response would be appreciated. thanks, JJ
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Hi.

Thank you for your question. My name is ***** ***** I will try to help with this. Have you checked any written terms that apply?
Customer: replied 1 year ago.
Hi Jo,The only written terms apart from a bog standard AST agreement is the single sheet of paper I signed with the agent which is not dated. Have you an e mail address where I can send you a scan of the paper?
I am in Dubai, 4 hours ahead of UK,
Expert:  Jo C. replied 1 year ago.
Ok.
So, in short, they are charging a large deposit?
Jo C. and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Joe,I had a helpful telephone discussion with one of your colleagues but I think it may help to clarify matters if I set out chronological bullet points as below. I am not a practising lawyer but I have spent 45 years as an insurance broker and specialist risk manager in the fields of construction, the professions, financial institutions etc. I also have experience as an expert witness and feel I have a reasonable grasp of contract law.
1. September 2015 - travelled to UK for 4 days with sole aim to rent a property.
2. Found property and explained to agent I would not return to UK until end of January 2016
3. Agent said it was normal practice to pay a retention fee to the landlord for the 4 months up to 1st Feb 2016 based on 75% of the monthly rent of 650 (487.50) x 4 = 1,950.I paid this on 28th Sept. 2015
4. I was told landlord wanted 6 months rent in advance. I paid this on 13th January. At the same time agent said she wanted to increase the security deposit from 750 to 1300 (equivalent to 2 months rent) I refused and agent then admitted the error was her fault. and she would 'deal with it'
5. The agent then said that she needed the 750 deposit before the end of January and this was transferred a couple of days ago.
6. Speaking to other, more experienced letting agents (my agent has been in business less than 6 months) I discovered that the 1950 retention fee is not 'normal practice' by any means and most said that after the taking up of satisfactory references tenants usually went ahead. In the event of default by the tenant before the lease commencing date they simply readvertised the property.
7. I still want the property but this transaction is leaving a bad taste in my mouth because the agent /landlord is taking unfair advantage in my view. The agent variously refers to the 1,950 as a 'retention fee' or 'holding deposit' (it is certainly not the latter in my view as per legal definition)
8. Despite remitting the 750 deposit I am considering rejecting the lease with the possibility of changing the date of commencement to the date the 1950 was paid, thus running from 28/9/15 for a statutory AST period of 6 months. The 1950 covers over 3 months rent and the balance can be taken from the 3990 and balance returned to me.
9. Is this possible? Does a tenant actually have to occupy a property under an AST? Have you any other suggestions?
I am returning to the UK 29th January. My thanks in advance of an early response. Regards. ***** *****
Expert:  Jo C. replied 1 year ago.
No, a tenant doesn't have to occupy.
But under an AST he would remain liable for the rent which is why occupation generally takes place otherwise there is no point.
Customer: replied 1 year ago.
Thanks Jo,So in order to get some value out of this it seems I should change the lease to commence from 28/9/15 for 6 months and ask for the return of some of the advanced rent payments? ie 3990 -1950 (to be taken as rent, not as retention fee) = return of 2040?
Expert:  Jo C. replied 1 year ago.
Will he agree to the change?
Customer: replied 1 year ago.
I will discuss when I get to UK and check cases if I can. The retention fee is clearly a separate oral contract from the lease but is not 'equitable' in my view - however emotions may be playing a part here...
Expert:  Jo C. replied 1 year ago.
Yes, it may well not be. That doesn't mean it cannot be enforced though unless it offends against UCTA which it may do.