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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71147
Experience:  Over 5 years in practice
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I put a holding fee on a house. 14 days later my husband and

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I put a holding fee on a house. 14 days later my husband and I started divorce proceedings unplanned which has turned very nasty since. After a couple of weeks (house was to be ready in 1.5 months, I became ill and was in the cardiac unit of hospital with heart problems. I came out and paid the first month rent and deposit, more than £5000 as my husband has her house but I am in rental and would be homeless in two months. But my solicitor (and I saw others) advised strongly against going ahead with the rental due to a very recent development, as the case has to go to court. So I did not sign the contract, continuously informed the agent and the owner of everything that was happening and today as we went ahead with issuing a court proceeding I pulled out, explaining clearly that I cannot rent the house as advised by my solicitor due to the court case. I said they could keep the holding deposit and any incurred costs but I would like my first month rent and 6 weeks deposit back. They refused to return any of that money. I cannot afford this. Could you advise please? Thanks
Thank you for your question. My name is ***** ***** I will try to help with this.
Is this an AST?
Customer: replied 3 years ago.

Yes but not signed by me.

No, but you paid the deposit so its binding.
I am sorry but its bad news although the liability may not be as bad as you think.
I know this isn’t going to be the answer you want to hear, and it’s certainly not what I want to tell you. However, I wish to be completely honest with you, so I feel obligated to not give you false hope.
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.
You could try to negotiate with the landlord. Sometimes they will agree to allow tenants to leave as its in their interests too on occasions.
If that is not possible here then 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.
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
Customer: replied 3 years ago.

Thank you.

Please note I have not moved in at all. The property remained advertised all this time. So how could they keep a deposit when I have not set foot in there?

Please also note that check in has not been done, I have not moved in and have had nothing to do with the property. How could they hold on to 6 weeks deposit which they have not registered with government deposit scheme. What could they do after 30 days when it would have to be registered while I have never been a tenant at that property?

Yes, they could unless, of course, you have given them in excess of one month's notice that you won't be moving in. If you had given them in excess of one month's notice then probably a court would accept that they should have found a replacement.
They don't have to register the deposit until 14 days after the beginning of the tenancy.
You are liable for the remaining months due under the contract. The landlord must mitigate his loss by seeking a replacement but he will get a minimum of four weeks I'm afraid so a six week deposit is not necessarily unreasonable.
Customer: replied 3 years ago.

Thanks. Sorry I still do not understand. Does this mean that I have lost my £5715 plus £500 deposit? They have not asked for any more money while looking to find someone else.

We did have an identical case which without the contract we were refunded full amount, having had to pull out at the last minute and not sign. How is this different? Same area, more credible agent? What happens to my deposit?

So my family solicitor should not have advised me not to go for the property? I cannot afford it without my husband's maintenance.

Look forward to hearing from you.

No. You have lost a sum to the value of the number of months it takes them to find a replacement which will probably be one to two months.
I wouldn't know about the case you refer to. It might have been they were willing to do more than they had to.
Your family solicitor's advice probably related to your family situation rather than your housing one.
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