Deposit not protected

[Stressed John]

Dear expert landlords of the forum, I need your opinions and advice.

My landlord is trying to pull a fast one.

When I moved in, he made me sign a standard England and Wales contract, EXCEPT he wrote NA in the deposit section and crossed off the bits pertaining to 'deposit protection' on the back of the contract. Instead, he opted to take one additional month's rent upfront as a 'deposit' and bypass the fees associated with protection schemes. He seemed trustworthy at the time and I obliged.

Now the end of my contract has come round, he is saying he wants to keep some of my 'deposit' for unjustified reasons (I am happy to elaborate, but suspect it's irrelevant and I do not want to overcomplicate this hopefully straightforward issue).

He has many tenants (I estimate around 10 across all properties), has had many more over the years, and I suspect he has not protected any of their deposits.

My questions are:

What rights do I have? How do I go about getting what I am due? What stands to happen to my landlord if he wishes to fight with me on this?

I really appreciate any help/advice, however basic or complex.

John

[Grampa]

I would ask him to list in writing the deductions and the costs for each deduction to see if they are fair. If you can get that he would have nailed in his own coffin because you could then put a claim in for up to x3 the deposit taken.

[Carryon Regardless]

If you are able to demonstrate it was taken as a deposit, that is there would be money returned from it all being well at the end of the tenancy, your LL will pay compensation to you if you pursue.

If the money was for rent as on the AST then he can only keep monies back for unpaid rents. If you claim the 'rents' in court he could counter claim but he demonstrating a good counter claim 'aint so easy.

If he is retaining rent money for other reasons I don't see how he could deny it was actually a deposit.

BTW he hasn't avoided any fees, with the DPS there aren't any.

[Stressed John]

I would ask him to list in writing the deductions and the costs for each deduction to see if they are fair. If you can get that he would have nailed in his own coffin because you could then put a claim in for up to x3 the deposit taken.

If you are able to demonstrate it was taken as a deposit, that is there would be money returned from it all being well at the end of the tenancy, your LL will pay compensation to you if you pursue.

If the money was for rent as on the AST then he can only keep monies back for unpaid rents. If you claim the 'rents' in court he could counter claim but he demonstrating a good counter claim 'aint so easy.

If he is retaining rent money for other reasons I don't see how he could deny it was actually a deposit.

BTW he hasn't avoided any fees, with the DPS there aren't any.

Grampa/Cor,

Thank you both very much for your responses.

Having looked over all his old texts and emails they all only refer to "2 months rent (for the first month)," fortunately I had the foresight to reply with "just paid you the 1 month's rent + 1 month's deposit as requested."

I understand a landlord doesnt HAVE to take a deposit, which seems it COULD make it easier to get away without protecting one (by taking informally, then referring to written records and claiming a 'deposit' was not taken, sneaky buggers).

Which brings me on to Cor's point. Fortunately I have records of all payments. I am a good rent-payer and owe him nothing for that. There is clearly excess money in his pocket roughly equivalent to one month's rent, due to the amount I paid upfont initially. I believe this makes it quite obviously a 'deposit' to all intents and purposes, even though he likes to call it '2 months rent....'

The only thing then is the contract signed as NA under deposit. This might help him avoid a fine and get me my full money back, but I'm not looking forward to the hassle and cost to me of doing so. With the amount of stress I am getting as a result of this, I should already be due compensation!!

[Carryon Regardless]

Do you have rental statements ? If rents paid are applied to specific months/s you may have your answer.

That is were you paying 1 month ahead or 2 months.

Then consider notice dates and departure dates, rental periods and rents due for them can be tricky. If you stay till 1 minute into the next rental period you owe a full months rent.

If he has stated he wishes to keep "some of the deposit" he's goosed.

LL's aren't likely to sympathise with your stress, swap yer.

[Richlist]

I think you need to establish if the 2 months rent is all rent or 1 months rent & 1 months deposit. Either way you cannot loose..... The contract does NOT show a deposit but it should therefore show that you paid 2 months rent in advance at the start of the tenancy......please confirm that it does.

If there is no deposit then all you need to do is pay no rent for the last 2 months of the tenancy.

If there is a deposit the landlord has failed to follow the deposit protection rules and you are due compensation.

Easy really.

[Stressed John]

Do you have rental statements ? If rents paid are applied to specific months/s you may have your answer.

That is were you paying 1 month ahead or 2 months.

Then consider notice dates and departure dates, rental periods and rents due for them can be tricky. If you stay till 1 minute into the next rental period you owe a full months rent.

If he has stated he wishes to keep "some of the deposit" he's goosed.

LL's aren't likely to sympathise with your stress, swap yer.

I paid by standing order, each month titling the payment as the month. i.e. first month rent + deposit, then 2nd month, etc.

He would probably argue he opted not to take a deposit. I will be due to leave bang on 6 months. Which means he will not be able to use the excess and will have to give me back the 'excess rent' I guess?

[Stressed John]

I think you need to establish if the 2 months rent is all rent or 1 months rent & 1 months deposit. Either way you cannot loose..... The contract does NOT show a deposit but it should therefore show that you paid 2 months rent in advance at the start of the tenancy......please confirm that it does.

If there is no deposit then all you need to do is pay no rent for the last 2 months of the tenancy.

If there is a deposit the landlord has failed to follow the deposit protection rules and you are due compensation.

Easy really.

Thanks for the reply.

The contract just says £X per month. I have an early email from him requesting the 'two months rent' to begin with. No mention of deposit. I returned with 'paid your one month + deposit.' That was the verbal understanding after all.

It's too late not to pay last month's rent. I already have, thinking I would be due back some 'deposit.' I will have to reclaim it somehow. I suspect he will make this difficult..

[Richlist]

Then from what you say it means your contract is not a standard contract and may not be valld.

All Assured Shorthold Tenancy (AST) agreements contain a section showing the rent, when its due, the dates it is due and the means by which payment is required.

The whole thing looks like a bag of worms and in your shoes I'd now ne considering taking formal legal advice.

Good luck.

[Trenners]

Hi Stressed John,

If it looks like a deposit, if it smells like a deposit ..... then it is a DEPOSIT irrespective of what the paperwork might say ... or what your "dodgy landlord" might say ...... The best way to get action from a landlord ... is to hit him where it hurts ... "IN THE WALLET" ......

If it was me ... I would refuse to move out of the property ... or remove my possessions .. or return the keys ... until he refunds MY DEPOSIT .... If he won't refund my deposit ... I will stay at the property until I have exhausted the rent payment (ie: used up all the deposit as rent) ...... I would even take this course of action if I had to move somewhere else .... in other words DON'T RETURN THE KEYS UNTIL YOU GET YOUR MONEY.

This threat - which you should be prepared to carry out - would mean that the landlord could not re-let the property and would have no options open to him ..... so the property is going to be occupied (by you and your possessions) but earning no rent!

To try and remove you - the landlord would have to apply to the court to gain an eviction order against you ... but he wouldn't be able to apply to the courts because he did not protect your deposit (and he has to provide a copy of the deposit protection certificate as part of this application process).

If he threatens you with "sending the boys around" .... that is harassment - call the police and report him to the local Council who will prosecute .... if he enters the property or changes the locks or removes your possessions .... that is illegal eviction and the Council will prosecute him for this as well!

Call the Police if any of this happens - because whilst you have the keys and your possessions are in the property .... it is your HOME and you have lots of legal rights.

My point ..... the WORST thing you can do is peacefully walk away from this tenancy and return the keys to the landlord. Once he has got your keys - you can kiss goodbye to your deposit. Legal action is a route you could follow ... but to be honest ...... involving lawyers only ever benefits lawyers (first and foremost) ... and rarely fixes the underlying problem ...... or gets your money back.

I am sympathetic to your plight and I will do anything I can to help you run this "dodgy landlord" out of town.

Good Luck.

[Carryon Regardless]

It would be easier to develop the evidence and take County Court action.

Where LL's have problems is that T's very often have nowt to take following a claim, the LL has a very obvious asset.

[Grampa]

So you paid the equivalent of 2 months rent at the outset of the tenancy? When was the next rent payment due? Was it 1 month later or two months later? Also how many months did you live at the property and how many multiples of the month rent (including the 2 payments at the start of the tenancy) dis you make?

[Stressed John]

So you paid the equivalent of 2 months rent at the outset of the tenancy? When was the next rent payment due? Was it 1 month later or two months later? Also how many months did you live at the property and how many multiples of the month rent (including the 2 payments at the start of the tenancy) dis you make?

Hi Grampa, that's exactly right. Next payment was due beginning of following month. So in total I have made equivalent of 7 months payment for 6 months stay.

I think his stance is that it's 'rent money,' more to follow..

[Stressed John]

Hi Stressed John,

If it looks like a deposit, if it smells like a deposit ..... then it is a DEPOSIT irrespective of what the paperwork might say ... or what your "dodgy landlord" might say ...... The best way to get action from a landlord ... is to hit him where it hurts ... "IN THE WALLET" ......

If it was me ... I would refuse to move out of the property ... or remove my possessions .. or return the keys ... until he refunds MY DEPOSIT .... If he won't refund my deposit ... I will stay at the property until I have exhausted the rent payment (ie: used up all the deposit as rent) ...... I would even take this course of action if I had to move somewhere else .... in other words DON'T RETURN THE KEYS UNTIL YOU GET YOUR MONEY.

This threat - which you should be prepared to carry out - would mean that the landlord could not re-let the property and would have no options open to him ..... so the property is going to be occupied (by you and your possessions) but earning no rent!

To try and remove you - the landlord would have to apply to the court to gain an eviction order against you ... but he wouldn't be able to apply to the courts because he did not protect your deposit (and he has to provide a copy of the deposit protection certificate as part of this application process).

If he threatens you with "sending the boys around" .... that is harassment - call the police and report him to the local Council who will prosecute .... if he enters the property or changes the locks or removes your possessions .... that is illegal eviction and the Council will prosecute him for this as well!

Call the Police if any of this happens - because whilst you have the keys and your possessions are in the property .... it is your HOME and you have lots of legal rights.

My point ..... the WORST thing you can do is peacefully walk away from this tenancy and return the keys to the landlord. Once he has got your keys - you can kiss goodbye to your deposit. Legal action is a route you could follow ... but to be honest ...... involving lawyers only ever benefits lawyers (first and foremost) ... and rarely fixes the underlying problem ...... or gets your money back.

I am sympathetic to your plight and I will do anything I can to help you run this "dodgy landlord" out of town.

Good Luck.

Hey Trenners, thanks for the response, much appreciated. I would be prepared to carry out these things. I think this situation would only arise from a very stupid landlord or one who underestimates the savviness of their tenants.

I think that given that it's not hard for both Ts and LLs to educate themselves around the laws that surround these things, real life situations where they can be enforced are rarer than some people think. When money is on the line, and in the case of most LLs it;s their occupation, such dumb moves are rarely made blatently. It's like a game of chess or poker, and if you're playing for money you're unlikely to make schoolboy errors. My LL is the prime example. It seems he knows the law through and is trying to use its loopholes to his advantage.

Let me explain with an update to the situation: it seems he is suggesting he WILL return any 'surplus rent' (his email however was so carefully worded that it's hard to tell). My issue now however is that he seems to want to handle the issue of 'damages' separately, and is leaving it to me to 'suggest a solution' in writing. Im not falling for that.

Basically, I caused some further damage to something because it was already damaged, beyond repair and not fit for purpose. Its faulty nature caused me to hurt myself in the process. My first port of call is to re-explain what happened as calmly as I can. However if he chooses to ignore reason, he will have a fight on his hands.

I think this might now be a legal matter beyond the remit of this forum.

[Grampa]

Go onto the Shelter website they have a lot of guidence for these issues.

[Stressed John]

For those who are interested...

I thought my landlord may attempt to address the damages issue separately, but it seems I overestimated his intelligence.

On moving out day, we worked out the extra rent I had paid, and then he handed me a bill for the disputed damages and suggested a deduction!

After a two hour battle of refusing to accept this suggestion or return keys, he eventually gave me a cheque for the full amount. He was unhappy about it to say the least.

The cheque has cleared, and I am home dry, but I still have the evidence/bill and think I will ping an email off to the county council nonetheless. They can deal with him.