Attempting to recover our deposit help please

[andycuk]

Good morning

 

Just found this website by chance and hoping I maybe able to gain some assistance from your goodselves so here goes:-

 

Our tenancy agreement was due to fiinsh on 1st November 2009. I contact Landlord by telephone (who lives next door) to state that after 12 months at the property we would like to leave, due to excessive noise and anti-social behavoir from other properties in the block, and as shift workers (both myself and partner work for emergency services) this was becoming an issue.

 

He agreed and said he was sorry and I asked him about notice he stated 1 month was fine and this was confirmed by me by letter and posted through his door by hand.

 

we have now recieved a letter from them stating we did not give two months notice and they are withholding £950 from our deposit for 1 months rent in lieu of notice.

 

This was sent 10 days after our departure.

 

Can anyone advice please?

[Steve__M]

You say "Our tenancy agreement was due to fiinsh on 1st November 2009".

 

If you left on or before then, you don't need to give any notice at all!

 

Was your deposit protected? If it was, raise a dispute with the relevant scheme. If it wasn't, then you can use the threat of a 3x penalty for failure to protect as a negotiating position.

[andycuk]

Yes deposit was protected and have started the dispute process but this is our first time with this and are unsure what to expect!!!

 

Can you expand on this no notice required suggestion anyone?

[Steve__M]

Firstly, if the landlord accepted one month's notice then that should be that. But obviously you may need to prove it, and I don't know where the burden lies. So the following assumes you cannot prove you gave notice:

 

What date did you leave the property?

 

Your contract was for 12 months. If you want, you can leave on or before 12 months as long as you pay for the 12 months. You don't have to give notice.

 

You cannot end the tenancy before the 12 months are up unless there is a break clause (which might be one, two or whatever months' notice - whatever you agree with the landlord).

 

If you did not leave until after 1st November it would have become a "statutory periodic tenancy" where to end it one rental month's notice is required by you or 2 months' notice if the landlord wants to end it.

[andycuk]

Steve M some really helpful information there copyed and pasted this from the "Short Term Tenancy Agreement"

 

1.6.1 The Term shall be for a definite period of twelve calendar months from and including 1st November 2008 to and including 31st October 2009.

1.6.2 If the Tenant remains in the Property beyond the end of the initial fixed term and no new fixed term

Tenancy comes into being then the Tenant will have a Statutory Periodic Tenancy by virtue of Section 5 of the Housing Act 1988.

1.6.3 The “Term” is to include any extension or continuation of the fixed term (but not a replacement tenancy for another fixed term) or as a Statutory or Contractual Periodic Tenancy.

However further on the tenancy agreement states

 

 

2.5 Tenants Break Clause

 

 

2.5.1 If the Tenant intends to vacate at the end of the fixed term he must give the Landlord at least two months notice in writing.

2.5.2 The Tenant may bring the tenancy to an end at any time (but not within six months of the commencement date) by giving the Landlord at least two months notice in writing from the rent due date stated in clause 1.7.4.

 

 

 

 

Is what you have already said still valid?

 

They are also attempting to claim for alledged damages that were already present how do we stand on that?

Edited November 16, 2009 by andycuk

[Snorkerz]

If you left 31 October, then NO notice was required. If you left after then (1st Nov?) then you had to give a minimum 1 months notice ending on the last day of the month. This is called a Statutory Periodic Tenancy and overwrites any notice periods specified in your tenancy agreement. Therefore, if you left on 1st Nov you are responsible for rent until 30th November.

 

With regard to deposit deductions for damage - was an inventory carried out when you moved in, did you sign it? If the answer is no then the LL will not be able to prove that the damage wasn't there when you moved in, and as such you have nothing to worry about.

[andycuk]

Thanks for that we left on the 31st October at 1500 and have a letter from the LL confirming that.

 

Sorry to be a pain but why does it overwrite what is in tenancy agreement?

[Snorkerz]

Thanks for that we left on the 31st October at 1500 and have a letter from the LL confirming that.

 

Sorry to be a pain but why does it overwrite what is in tenancy agreement?

 

You entered into a "Fixed Term" of 12 months (section 1.6.1 of your agreement) as such, you can not be penalised for not staying longer. At the date of signing, you agreed that you were only staying for 12 months - in effect you gave 12 months notice!

 

Having left the property on 31/10 you didn't enter into a SPT and therefore it doesn't overwrite it but section 2.5.1. is unenforceable because of what I said above.

Edited November 16, 2009 by Snorkerz

[Steve__M]

I would agree with Snorkerz. But also you should bring the following document from the OFT on Unfair Terms in tenancy contracts to the attention of your landlord or the dispute resolution service. See 3.78:

 

"A tenant is not required to give notice to bring the tenancy to an end at the end of the fixed term... "

 

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

 

PS. This document is very useful for checking lots of other requirements in tenancy contracts.

[Snorkerz]

I would agree with Snorkerz. But also you should bring the following document from the OFT on Unfair Terms in tenancy contracts to the attention of your landlord or the dispute resolution service. See 3.78:

 

"A tenant is not required to give notice to bring the tenancy to an end at the end of the fixed term... "

 

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

 

PS. This document is very useful for checking lots of other requirements in tenancy contracts.

 

Useful link Steve_M. Would add for OPs benefit that this is 'guidance', not 'law' so they should be careful how they use it. ie it's fine to say "the office of fair trading say" but its dangerous to say "the law is..."