Clarification needed re:deposits/protection!

[jimi86]

Evening all, would appreciate any words of advice/assistance here

 

We are currently in dispute with our landlord regarding deductions from the deposit (a sum of £495). While this is continuing (a dispute has opened with TDS), we are locked in a further dispute for what I will term 'overpaid rent'.

 

Having given notice of our intention to leave the tenancy, we were due to vacate at the end of this month. However, it became apparent that the landlord had found a new tenant who was keen to move in as quickly as possible and as we had already signed the tenancy on our new property, it made sense for all concerned that we vacated mid-way through the month so that she could move in. We had an informal agreement with the landlord that the rent we had paid in full for this month would be returned to us in part, to cover those days from when we had vacated (at a pro-rata rate). This seemed to make sense for all sides i.e. tenant has moved in when she wanted to, landlord has kept the property tenanted (and therefore has income for the next 6 months at least) and we get a portion of our rent back.

 

Whilst this was not strictly 'in writing', we do have a text message confirming as much, and emails between both parties subsequently have confirmed the existence of this agreement. Landlord has since tried to claim that we overpaid him 'in error' but at the time the standing order was paid out, nothing had really been decided about move out dates (and we were keen to avoid breaking our tenancy agreement, even unintentionally, hence we paid the full amount in expectation that some would be 'refunded').

 

The problem has arisen due to the dispute over the deposit. As we are far from reaching an agreement, the landlord is holding onto the overpaid rent until he is satisifed with the outcome. He has stated already that if the ruling from TDS is not satisfactory to him, he will use this sum to top-up the amount to a total more acceptance to him (pretty much 'as he sees fit').

 

In my eyes, from the moment he started doing this, he was treating the overpaid rent as an additional deposit - not only that, but a deposit that is not (and cannot now) be protected.

 

For this reason, I am considering taking things further at the small claims court, but I have 2 questions...

 

1) Would a court accept that an agreement to return the rent existed, given that we have nothing strictly 'in writing' or signed (text messages/emails only)

 

2) Would a court accept that the landlord, despite his protestations to the contrary, is treating the sum of overpaid rent as a deposit?

 

Many thanks in advance!

[Kentish Lass]

I think you are on a hiding to nothing regarding the idea that the landlord is "holding" the rent due back to you as an extra "deposit".

 

However, it is illegal for a landlord to charge rent from two sets of tenants for the same rental period for the same property!!

 

Keep the deposit argument totally separate (even if he isn't) and write to him saying that accepting rent from two sets of tenants is illegal and unless the overpaid rent is returned to you within (say) 14 days, you will sue him through the small claims court for this amount.

 

If you are unsure about this, you can always check with Shelter or CAB.

[jimi86]

I think you are on a hiding to nothing regarding the idea that the landlord is "holding" the rent due back to you as an extra "deposit".

 

However, it is illegal for a landlord to charge rent from two sets of tenants for the same rental period for the same property!!

 

Keep the deposit argument totally separate (even if he isn't) and write to him saying that accepting rent from two sets of tenants is illegal and unless the overpaid rent is returned to you within (say) 14 days, you will sue him through the small claims court for this amount.

 

If you are unsure about this, you can always check with Shelter or CAB.

 

Thanks for the reply. Definitely planning to speak to the CAB about it this week. I've been told different things (but then it's not such a common situation) so I certainly need someone to clarify it for me!

[Just4Let]

Surely where a Lanlord can claim for UNDERpaid rent from the TDS you should be able to claim OVERpaid rent?

I'd call the TDS and add to the already open dispute explaining the situation and see if you can add this into any counterclaim you have.

[Kentish Lass]

Landlord can only reclaim underpaid rent from the deposit if it says so in the AST. This is not an automatic right of deduction.

 

The deposit is the deposit. Overpaid rent is overpaid rent. They are two separate issues.

[Just4Let]

Landlord can only reclaim underpaid rent from the deposit if it says so in the AST. This is not an automatic right of deduction.

 

The deposit is the deposit. Overpaid rent is overpaid rent. They are two separate issues.

 

Unsure of the TDS rules as I don't use them but in the DPS I claim for rent arrears EVERY time and never have a problem.

It categorically states in the DPS that the deposit can be claimed upon for rent arrears so why not spin this around? Nothing to lose!!

[Planner]

1) Yes

 

2) Definatley not a deposit.

[jimi86]

1) Yes

 

2) Definatley not a deposit.

 

With this in mind, how can I go about getting this overpaid rent back? Small claims court has been mentioned and is something I am considering, but is there a particular act/section I can reference in connection with this?