UK Landlord Forum / Life

We rented our family home to a "friend" who was homeless at the time and we were desperate to move but did  not wish to sell our house.  As part of the agreement we reduced the rent by £200 as there was no time to decorate the house to a good standard (paint etc), did not take an inventory or any pictures before we moved.  I took over the tenancy a year ago and increased the rent, but still below the local rates.  The house has suffered general wear and tear but the tenant has also greatly neglected the house to a state that requires a complete overhaul which will obviously be costly.  As the house now needs a lot of renovation we agreed with the tenant that she would move which appeared amicable at the time as the tenant has also secured accommodation elsewhere.  I received an email out of the blue complaining and reneging that she would put right some of the damages caused to the property. I am now worried that she will cause further damage or leave the house in a mess for me to put right. I never secured the deposit with the TDS. My question is, in order to protect both our situations, can I secure the rent with the scheme, only for 2 weeks as the move out date is 1 September?  I have never been a landlord before any only took over when my ex-husband and I separated.  I would greatly appreciate your feedback.  Thanks.

Quote from: silversurfer on August 16, 2014, 10:56:53 AMMy question is, in order to protect both our situations, can I secure the rent with the scheme, only for 2 weeks as the move out date is 1 September?

This question, I must admit, doesn't make any sense to me. Could you try to rephrase what you are asking and I'm sure we will try to help.

If you did not protect the deposit, in time and correctly (by serving the Prescribed Information to the Tenant) then 1) you aren't able to use a Section 21 to bring the tenancy to an end, and 2) you are liable to being sued by the Tenant (and they will win, it is a foregone conclusion) for up to 1x to 3x the amount of the deposit. Without a Section 21 (have you served one, anyway?) you will be relying on the mutual agreement of both you and the Tenant for leaving the property... do be clear that the Tenant can remain on if they choose to... because, even if you have served a Section 21, it was invalid (although the Tenant might not be savvy enough to realise this).

Just be very careful what you do next... this option (of suing you for not protecting the deposit) is open to the Tenant for, I think, 6 years.

Let us know if you have further questions or want to provide more clarity.

Thanks for your response.  There was no Section 21 issued, it was all verbally agreed.  This was a person I thought I knew. I was naive and believed that all was in order until recently when I received an email from the tenant full of complaints that I had not initially been aware of. As there was no inventory issued in the first instance, I am aware that I am on the weaker end should a dispute arise. I would like the tenant to vacate the property but not to leave it in a worse situation than it is in right now. Hence my query is, is there a legal way I can delay the release of the deposit without jeopardising my legal position until we are both agreed as to the state of the house for at least 24 hours?  I am of the view that a lot of rubbish will also be left behind for me to clear. Should I seek legal advice?

It seems your bigger problem is what happens if the Tenant decides to not leave.

However, let's assume the Tenant will leave as verbally agreed... is your question then - can you hold onto the deposit (as you hold it now, it's not protected with a scheme) until you feel you have agreed appropriate deductions, if any, after the Tenant has vacated?

Well, yes... you can, because you hold all the control at this moment in time... but obviously you realise that have already broken the law by not protecting it? The aggravation you have opened yourself up to here is potentially bad... if you play silly buggers with this Tenant's deposit and you end up in front of a judge, it is quite likely they would not look favourably on this. You holding the deposit and not having it protected is simply not legal, though, so your position is weak.

For example... if you had not protected the deposit and you wanted to serve a Section 21 - because the Tenant would not leave willingly, only by receiving a Section 21 and being evicted - then you would be looking at returning the deposit in full before you could even serve a valid Section 21.

Is there a legal way for you to do this... well, no, because you are already neck-deep in illegal.

Your biggest hope is that the Tenant doesn't have a friend who has been reading-up on the law and offers them some interesting advice.

Add to this the fact that you have no Inventory. How can you even contemplate making deposit deductions? You can't go to through the ADR process of the Deposit scheme because you never put it into a scheme. So how can you prove anything? Nothing is signed and the onus of proof is entirely on the Landlord - the Tenant could simply say "it was all like that when I moved in"... the Tenant doesn't have to prove anything.

Your next biggest hope is that your Tenant leaves and feels as though the deposit deductions you'd like to make are actually fair, and accepts it. If not, you are in for some trouble. You can try to unilaterally retain what you want of it, but if you are challenged you are going to lose.

I hate to be the bearer of bad news, but your legal position is already a pretty bad one. You are depending on a verbal agreement that the Tenant will actually leave the property when you hope. You haven't protected their deposit. You haven't got an agreed and signed Inventory. You want to make deductions from the deposit. It sounds like a mess. I hope it goes right for you - what you need to bank on is the Tenant's lack of knowledge - but please understand that you have done almost everything wrong (by the sound of it) so surely you must feel like you should take some of the hit?

If the Tenant decides to not leave - what will you do? Is that a risk?

Umm, sorry but you are in the shit.

Give her all her money back, and keep your fingers crossed.

Keep it nice.

The law is 100% on the tenants side, you have no rights at all, as you ( or whoever) have failed in many of the ways a landlord is statutorily obliged to behave.

Honestly, take it like a man, give back the deposit and read up on doing it right next time. Which ever way you look at it, you have failed in your responsibilities as much, and indeed probably more than they have.

HI I,m new to the forum i,ve rented my property since oct 2009 on assured shorthold tenancy i did,nt do the deposit sceme as it was between friends (stupid) anyway I have issued my tenant with section 21 which tenancy should end 02/09/2014,But the tenants are saying because I did,nt register the deposit the section 21 is invalid,I,m giving them notice as I have to move back into my property myself as i,ve hit hard timesand cant afford to rent the property im in,any help on this would be appreciated

I would like to add that the rent due this month was not paid by the tenant but was used for the returned deposit to the tenant.

If you did not protect the deposit your Section 21 is invalid, correct.

You can serve a valid Section 21, giving the Tenants at least 2 months notice before you can start repossession proceedings, after you have returned the deposit in full.

Serving the Section 21 does not mean you will get your property back when you want, but you might.

If your Tenants (ex-friends, one presumes?) are savvy (good chance, as they know the Section 21 was invalid) then be prepared for them to sue you for not protecting the deposit... if I was you I would settle before going to Court.

Have you anything in writing?

How does she pay the rent? Into your account or cash?

Do you living under the same roof?

If you have nothing in writing and she paid cash und is living under your roof.

You can they, that she was a friend and she was only a guest visiting you since  afew days. And now after a disput you want her to leave.

Thank you to all for your advice.  The tenant left on the agreed date, left the house a complete mess and I am now a wiser landlady.  I have had to redo the house completely and will ensure that everything is properly done before engaging another tenant.  I will open a new post in regards to ASTs and whether legislation has changed since I drafted the AST last year.  Thank you again (phew!)

silversurfer, you were lucky but there is a potential for you to be sued for up to six years, of course if you have returned the deposit you are probably OK.

My advice would be to review OFT356 which are the Office of Fair Trading guidelines for unfair contract terms in tenancy agreements.

General mistakes that are commonly made

Penalty clauses, e.g. a charge per day that rent is overdue (you may only charge your reasonable costs and interest)
Any clause that does not give the tenant the same rights as you (e.g. a break clause)
Any notice clause that does not explicity tell the tenant of their rights under the housing act

If you want to upload a zip of your tenancy agreement to mediafire.com and post the link here I will have a look to see if there is anything that stands out or you can buy an agreement on this site.

The way I recommend you proceed is to

Meet the tenant and take a deposit 7 days prior to move in date
Protect that deposit with the DPS prior to the tenancy starting
Download the DPS prescribed information form
Download the DPS Custodial Terms and Conditions
Download the DPS Leaflet

Then you issue them with the PI at the same time as you get them to sign the tenancy when they move in and pay you the rent, you get them to sign a copy of the PI at the bottom of each page so they can't say they did not receive that page. Then for good measure scan the signed copies, email them to the tenant with a BCC to yourself, that is effectively a date stamp.

If your property is far away and you do not want two trips have them pay the deposit to your bank account 7 days early then secure it immediately on the same day.  Make sure that you have their correct email and mobile number which you have tested work, then once they have signed everything remind them that they can change their details on the deposit holders site, this is important as if they change their mobile number they may not get notifications.

Quote from: RickC on October 03, 2014, 05:24:13 PM
Then you issue them with the PI at the same time as you get them to sign the tenancy when they move in and pay you the rent, you get them to sign a copy of the PI at the bottom of each page so they can't say they did not receive that page.

Thank you RickC. I shall upload the tenancy agreement later today.  Can I ask what is  PI?  I would also like to insert a clause in the agreement that the tenant is only allowed a maximum of 1 dog and 1 cat as household pets and if they choose to have any I will require additional deposit and for them to sign a declaration that they will pay for any damages caused and fumigation upon end of tenancy.  Is this okay?

PI is the Prescribed Information, the information you have to give the Tenant within 30 days to tell them where you have protected the deposit and how they can access it.  It is called "Prescribed" because it has to include certain things and be done in a certain way as detailed in the act here: http://bit.ly/HousingPI

Note that the law currently sees an Assurred Shorthold Tenancy and the subsequent Statutory Periodic Tenancies as entirely different, so they both need PI served within 30 days of commencement.

This might sound silly but in legal terms you can't hold a deposit for the performance of a contract and then apply that to an entirely different contract, even if it is created by statute.  The new PI must relate and refer to the SPT not the original AST.

I think when drafting any clause you need to be seen to be entirely reasonable, I think depends on the size of the property but considering some people say no dogs or cats (it is against OFT guidance to ban "any" pet you should specify).  I think you need to be very tight on your inventory, note the state of carpets (video them with a timestamp and post the video as unlisted on YouTube, then only people you give the link to can see it).  I think you could reasonable say that the tenant agrees to pay for any damage caused by the pets, cats claw carpets, especially at the edges/doors and dog chew, plus additional cleaning costs.  You could agree a higher deposit if they are having pets but you MUST lodge that with the deposit company.  It is best to get this done at the beginning of a tenancy as it messes up your paperwork if you have to file everything all over again because they get a dog.

I create my documents with the intention of being completely fair as well. I have read OFT356 in great detail and I do agree with most of what you find in there. It is worthwhile noting, though, that this is just guidance. It is not actually enforceable in any way, shape or form... so if you did want to have an outright ban on pets, you could do so. I, however, prefer to have fair terms and conditions in my documentation. I also always provide the draft AST to the Tenants at least a week before I expect them to sign it.

In my AST I have the following clause... "Not to permit any animals on or in the Property without the Landlord's written consent. Such consent, if granted, can be revoked at will by the Landlord." in a recent let I then altered that to read "Not to permit any animals on or in the Property without the Landlord's written consent. Such consent, if granted, can be revoked at will by the Landlord. Addendum: Agreement for 1 dog obtained from the Landlord on XX XX XXX." as I had agreed with the Tenants about them bringing their 1 dog along and we knew about it up front. Yes, I took an extra £100 on the deposit... this is not much in the grand scheme of things. The Tenants had given, and continue to give, strong indications they would like somewhere long-term, so I am expecting to be replacing the carpets throughout in a number of years anyway.

Quote from: RickC on October 03, 2014, 05:24:13 PM
Thank you RickC. I shall upload the tenancy agreement later today. 

Here is the draft agreement.  Thank you in advance for your assistance.

That agreement has so many faults I really would not use it.

It is way too long, has duplicate terms e.g.

-   To reimburse the Landlord for any excess payable under the Landlord's insurance policy referred to in Clause 3.4 for any claim resulting from any action or inaction on your part.

-   To reimburse the Landlord for any excess sum, up to a maximum of £100, payable under the Landlord's insurance policy for each and any claim on the Landlord's policy resulting from any action or inaction on the part of the Tenant, their invited visitors or guests in breach of this agreement.


It has statements making recommendations that serve no legal purpose.

"It is strongly recommended that you keep your own goods, possessions and activities of at the Property fully insured against loss or damage with a reputable insurance company."


You also cannot make a tenant liable for something that is generally considered a landlords cost, you can't get them to cover your excess, you can only charge them for things that you can PROVE were their fault

You can't use such vague terms as "any action or inaction on your part."  don't use "your", if there are tenant responsibilities they need to be clear, concise and reasonable.

You have terms like

2.2.1   Not to tamper, interfere with, alter or add to the gas, water or electrical installations or meters in or serving the Premises.

Who? 

The statement way above says

THE TENANT HEREBY AGREES with the Landlord as follows: -

Yes I agree with the landlord but I was agreeing that he should not so that.


This term is beyond the tenant's control

2.2.6   Not to allow any of the services connected to the Property on the day that it is granted to be disconnected, altered, or removed at any time during or at the end of this Agreement.

The utility company can do what it wants, a term that holds the tenant responsible for the putting such meters back might be better and a term for them to

2.2.5   To ensure at all times during the Tenancy there is a current valid television receiving licence in force in respect of any television set in the Premises whether belonging to the Landlord or the Tenant or any hire company and should the Tenant have a hired television receiver, to arrange for its return to the hirer at the end of the term.

What if the tenant does not have a TV or does not watch TV?  To be honest you have no obligation in this regard so it is a waste of paper, you CERTAINLY can't make them pay for a TV licence for YOUR TV.

These next two could be merges with a simple clause to pay all utility charges, does your property actually have a septic tank?  If so I would have a clause for it along with a a responsibilty to empty it as required.

2.2.2   To pay for all gas, electricity, water and sewerage services supplied to the Property during the Tenancy including, where applicable, charges in relation to septic tanks.

2.2.3   To pay all charges for the use of any telephone at the Property during the Tenancy.

Here are another pair that are duplicate and even contradict each other

2.3.1   To keep the interior of the property, the internal decorations, and the fixtures, fittings, furniture, and appliances in the Property in good repair and condition.  This clause does not oblige the Tenant to repair damage caused by accidental fire or anything that the Landlord is liable to repair under this Agreement or by law.  The Tenant is not obliged to put the Property into better repair than it was in at the beginning of the tenancy.

2.3.2   To take reasonable precautions to keep the interior and exterior of the Premises including any Fixtures, Fittings and Contents in the same repair and condition throughout the Tenancy as at the commencement of the Tenancy, (excepting only those installations which the Landlord is liable to repair under Section 11 of the Landlord and Tenant Act 1985, and The Gas Safety (Installation and Use) Regulations 1998).  Fair wear and tear due to reasonable and normal use and damage by accidental fire and other Insured Risks is excepted (unless the same shall result from the act or omission on the part of the Tenant or any person residing or sleeping in or visiting the Premises with the consent of the Tenant).

You have to avoid requirements that are subjective, what is reasonable to me may be completely different to you. Again you can't make them liable for what are generally considered landlord costs, e.g. decorating

I could go on, just about every term has issues

To be honest I would spend £5 and buy the agreements from this site (I have not seen them but I trust the site owner had them drawn up by a Lawyer)

www.propertyinvestmentproject.co.uk/landlord-shop/buy-tenancy-agreement-forms/

Thank you for your help and I have now got a much better tenancy agreement