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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71130
Experience:  Over 5 years in practice
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I paid a £500 holding deposit for a property rental before

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I paid a £500 holding deposit for a property rental before viewing and was told verbally that it was fully refundable if I did not like it after viewing. I did like it and after this I signed the estate agents terms and conditions.

I have now pulled out and have requested the return of my holding deposit, which was initially refused due to the T&C's. While I understand that the agents may have incurred costs I think that £500 is excessive so I asked where this money would go. I have now been informed that

"as you have signed the pre tenancy and committed to a move in date, unless the property is re rented by the agreed move in date, 16th March, your deposit will be used to cover any lost rent that may be incurred. we will inform you once the property has been re rented"

The agreed move in date was the 18th March and I have just relooked at the T&C's and they have put the wrong date which I didn't realise at the time. The date stated on the T&C's is actually 18th February which has passed, and as the current occupier of the flat does not move out until the 16th March - therefore making it impossible for us to move in on the date actually signed for - are these T£C's actually enforceable?

I understand that I did sign (we were served notice on our current flat as the landlord wanted to move back in, but then changed her mind so we are no longer moving, but the pressure was on at the time), and I expected some form of admin fee but £500 seems unreasonable to me?

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

Are you asking if you are liable?
Customer: replied 4 years ago.

Yes, I want to know if I can get my holding deposit back considering the information on the T&C's is wrong?

When did you give notice and when were you supposed to move in please?
Customer: replied 4 years ago.

I was given notice on the Monday 17th Feb


I paid the deposit on the afternoon of the 17th and then viewed the prospective new flat on the evening of the 17th


I agreed rent on the prospective new flat on the 20th. That evening my landlord rescinded her notice for us to move, we felt that she was unstable so decided to move anyway.


I signed the T&C's on Monday the 24th and informed my current landlord that we did not feel secure in her flat due to the notice that she served


My landlord called me on the evening of the 24th to offer to reduce the rent and guarantee our lease for a year


I informed the agent I could no longer move in on the 26th. They had not yet performed any reference checks or sent us the tenancy agreement

So when were you supposed to move in?
Customer: replied 4 years ago.

Sorry! we were supposed to move in on the 18th March


The current occupier moves out on the 16th March and the T&C's state that we are to move in on the 18th February


The fact of the T & Cs are a non issue except really that it damages you but it will get nowhere.

If the T & Cs are accepted then you gave notice on the 17th and should have moved in on the 18th when the landlord would have had no time to find a replacement tenant and then you would be liable for the rent.

It matters not though except that you should be fighting the T & Cs rather than relying on them. The property wasn't available for you to move in at that time so whatever was said about that time is a non issue.

Unfortunately ASTs are very hard to escape. You pretty much have to show that the property is gutted by fire damage or flooding and so you cannot live in it. Another acceptable reason would be that a person's life is in immediate danger like a gas leak.

I'm afraid that things like change of circumstances of the tenant or the fact that the premises is not salubrious is not sufficient.

Come what may though, you did agree to a contract and I'm afraid you will be acting unlawfully if you leave early. However the landlord is under a duty to mitigate his loss by seeking a replacement tenant and he will not get forever to achieve that. Realistically, if a landlord is really trying, most properties can be let to another tenant comfortably within a month. You will only be liable up until the time that the landlord is able to replace you which will be nothing like the remaining months due under the contract.

Of course, there is a risk that the landlord will not be able to find a replacement. If so, the Court will ask him to prove that he has looked for a replacement. If he is able to do so to the Court's satisfaction then you would be liable for that period but that is very unlikely.

If you gave notice on the 17th February and you were not due to move in till the 18th March then he has had time to find a replacement and if you sue him for the deposit he would have to establish to the Court that he had not been able to do so. Otherwise he will have to repay the sum.

Sorry thats probably not the answer you wanted but it is the position that you have and I have a duty to give you truthful and accurate information even though its not what I want to say.

Hope this helps. Please let me know if you need more information

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