Comments on: Tenancy Deposit on 'Renewal of Tenancy' http://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/ Housing law news and comment Tue, 07 Feb 2012 09:56:35 +0000 hourly 1 http://wordpress.org/?v= By: NLhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2662 NL Thu, 03 Dec 2009 12:36:55 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2662 Not sure I'm seeing it. It would have to mean that there was no valid deposit for the current tenancy (the landlord having failed to return previous deposit, tenant having failed to provide one). Second, it would be pretty easily rebuttable. Any indication from the landlord, tenant or both that the deposit was (also) considered to be for the current tenancy would surely cause a set-off based on mutual breach argument to fail. I've had my say on the 'actual handing over over cheque/cash' point above. I think it is sufficient that the LL has 'received the deposit in respect of the [new] tenancy'. That LL, tenant or both have waived the formality of a cheque or cash being passed backwards and forwards doesn't mean it hasn't been 'received'. And surely, set-off is a remedy, not an actual state of affairs? If the LL is saying 'you have failed to pay me a deposit on the new tenancy, so I'll take the money from the previous deposit rather than returning it' and the tenant acquiesces then there is clearly receiving going on. Not sure I’m seeing it. It would have to mean that there was no valid deposit for the current tenancy (the landlord having failed to return previous deposit, tenant having failed to provide one). Second, it would be pretty easily rebuttable. Any indication from the landlord, tenant or both that the deposit was (also) considered to be for the current tenancy would surely cause a set-off based on mutual breach argument to fail.

I’ve had my say on the ‘actual handing over over cheque/cash’ point above. I think it is sufficient that the LL has ‘received the deposit in respect of the [new] tenancy’. That LL, tenant or both have waived the formality of a cheque or cash being passed backwards and forwards doesn’t mean it hasn’t been ‘received’.

And surely, set-off is a remedy, not an actual state of affairs? If the LL is saying ‘you have failed to pay me a deposit on the new tenancy, so I’ll take the money from the previous deposit rather than returning it’ and the tenant acquiesces then there is clearly receiving going on.

]]> By: Stan Gallagherhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2661 Stan Gallagher Thu, 03 Dec 2009 10:25:08 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2661 Argument not view at this stage - still the point is that the tenant has not actually paid a deposit re the renewal tenancy and the landlord has not refunded the deposit re the original tenancy - both required by the tenancy agreements and, taken together, obligations that cancel each other out - what has happened is that the original deposit has simply been rolled over in the time honoured way - bound to be a set off argument in there somewhere? Argument not view at this stage – still the point is that the tenant has not actually paid a deposit re the renewal tenancy and the landlord has not refunded the deposit re the original tenancy – both required by the tenancy agreements and, taken together, obligations that cancel each other out – what has happened is that the original deposit has simply been rolled over in the time honoured way – bound to be a set off argument in there somewhere?

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2660 NL Wed, 02 Dec 2009 13:24:07 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2660 Stan, if your view on 'set-off' is right, how could the landlord make deductions from the 'deposit' in respect of damage done during the new tenancy? Stan, if your view on ‘set-off’ is right, how could the landlord make deductions from the ‘deposit’ in respect of damage done during the new tenancy?

]]> By: Stan Gallagherhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2659 Stan Gallagher Wed, 02 Dec 2009 12:55:26 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2659 Found the above discussion extremely interesting. Have a letting agent client who has a very angry landlord client who is on the wrong end of a County Court judgement to pay the tenant 3 X deposit. The original tenancy and payment of the deposit pre-dated the TDS, but the renewal tenancy did not. The rent remained the same cross both tenancies - so no actual refund and re-payment of the deposit money. My argument is that the landlord's obligation to refund the deposit at the end of the first tenancy has been set off against the tenant's obligation to pay a deposit in respect of the renewal tenancy. If there is no more than a set off, has a deposit been "paid" or "received" within the meaning of the Act. I would not have thought so BUT... Be grateful for any comments, and pointers to any higher authority, or any more County Court decisions on point- cannot find any. regards Stan Gallagher Tanfield Chambers Found the above discussion extremely interesting.

Have a letting agent client who has a very angry landlord client who is on the wrong end of a County Court judgement to pay the tenant 3 X deposit. The original tenancy and payment of the deposit pre-dated the TDS, but the renewal tenancy did not.

The rent remained the same cross both tenancies – so no actual refund and re-payment of the deposit money.

My argument is that the landlord’s obligation to refund the deposit at the end of the first tenancy has been set off against the tenant’s obligation to pay a deposit in respect of the renewal tenancy. If there is no more than a set off, has a deposit been “paid” or “received” within the meaning of the Act. I would not have thought so BUT…

Be grateful for any comments, and pointers to any higher authority, or any more County Court decisions on point- cannot find any.

regards

Stan Gallagher
Tanfield Chambers

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2658 NL Tue, 02 Jun 2009 11:07:08 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2658 But if the periodic started in March 06, how are you going to claim new tenancy after April 07? But if the periodic started in March 06, how are you going to claim new tenancy after April 07?

]]> By: Maestrohttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2657 Maestro Tue, 02 Jun 2009 04:02:03 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2657 What if the AST reverted to a new periodic tenancy on 1st April 2007 (for arguments sake) ... is it right that the TDP shouldnt apply? Is this about literal applications or for a wider policy implication? It surely depends on the reading and application, or rather, the skill of the advocate. What if the AST reverted to a new periodic tenancy on 1st April 2007 (for arguments sake) … is it right that the TDP shouldnt apply?

Is this about literal applications or for a wider policy implication? It surely depends on the reading and application, or rather, the skill of the advocate.

]]> By: Maestrohttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2656 Maestro Tue, 02 Jun 2009 03:15:20 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2656 I'm dealing with a case where the AST started in Sept 05. Renewal every 6 months which should be reasonably arguable that this was a new handing over of deposit monies.. it goes to the spirit of the regulations. Especially as original contract (like many) done through an agent, then LL takes it over. In any event, the AST was allowed to roll into a stat. periodic tenancy in March '06 (which is arguable as an AST on the facts of the case, but no new agreement signed and no term obviously set although implied, so tricky!)... pre Apr 06 deposit, term ended Mar 06, no new contracts.... a clever landlord or good timing? Intention goes a long way. Now the tenancy has come to an end (Dec 08), LL is witholding deposit. The County Court will be asked to rule on the renewal of the agreements bringing the monies into the TDP; to proactively apply the 3 x penalty. There is simply no reasonable justification for periodic tenancies to not be covered by the TDP. We will be running it and will find out im sure .... I’m dealing with a case where the AST started in Sept 05. Renewal every 6 months which should be reasonably arguable that this was a new handing over of deposit monies.. it goes to the spirit of the regulations. Especially as original contract (like many) done through an agent, then LL takes it over.

In any event, the AST was allowed to roll into a stat. periodic tenancy in March ’06 (which is arguable as an AST on the facts of the case, but no new agreement signed and no term obviously set although implied, so tricky!)… pre Apr 06 deposit, term ended Mar 06, no new contracts…. a clever landlord or good timing?

Intention goes a long way.

Now the tenancy has come to an end (Dec 08), LL is witholding deposit. The County Court will be asked to rule on the renewal of the agreements bringing the monies into the TDP; to proactively apply the 3 x penalty. There is simply no reasonable justification for periodic tenancies to not be covered by the TDP.

We will be running it and will find out im sure ….

]]> By: Nosferatuhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2655 Nosferatu Wed, 20 May 2009 14:02:33 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2655 We had a last minute N244 application rejected this morning - possession granted under Section 21 but deposit not registered (first AST 2006 and last AST agreement signed December 2007). Judge adamant that as the deposit was taken in 2006 before the introduction of the DPS there is no requirement to register, even though the last AST agreement was signed after the DPS started. Pity it wasn't Clerkenwell& Shoreditch... PS I think NL's right about the TDS info on renewal tenancies. We had a last minute N244 application rejected this morning – possession granted under Section 21 but deposit not registered (first AST 2006 and last AST agreement signed December 2007). Judge adamant that as the deposit was taken in 2006 before the introduction of the DPS there is no requirement to register, even though the last AST agreement was signed after the DPS started. Pity it wasn’t Clerkenwell& Shoreditch… PS I think NL’s right about the TDS info on renewal tenancies.

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2654 NL Mon, 04 May 2009 21:59:41 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2654 It was County Court, so unless it is being appealed, I doubt that there is a transcript. According to Painsmith, it appears that James Browne at Lamb Chambers was involved - you could try him. It was County Court, so unless it is being appealed, I doubt that there is a transcript.

According to Painsmith, it appears that James Browne at Lamb Chambers was involved – you could try him.

]]> By: Paulhttp://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/#comment-2653 Paul Mon, 04 May 2009 21:54:59 +0000 http://nearlylegal.co.uk/blog/?p=1553#comment-2653 Does anyone have a link to the judgment? Does anyone have a link to the judgment?

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