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Joshua
Joshua, Lawyer
Category: UK Property Law
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Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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If a Landlord has failed to protect a tenants deposit in a

Resolved Question:

If a Landlord has failed to protect a tenant's deposit in a suitable desposit protection scheme, can the tenant end a fixed term tenancy claiming breach of contract?
Submitted: 1 year ago via Tenancy Agreement Service.
Category: UK Property Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Is there any form of break clause present in your tenancy agreement please?

Customer:

Landlord had a break clause in contract after 6 months. We sadly do not.

Joshua :

Thanks. Can you advise the wording of the same if you have it to hand?

Customer:

Unfortunately I do not have the exact wording to hand but can confirm that the Landlord would need to give us two months notice to vacate.

Customer:

I should advise that the contract clearly states that the deposit is being held with the Deposit Protection scheme which is why we didn't initially question it. Approximately a week ago however we were informed by the letting agent that despite numerous attempts to obtain the deposit scheme details from the landlord they were unable to do so and advised us to make our own enquiries (landlord manages the property). I have checked all 4 schemes on line and our deposit isn't being held with any of them. Our tenancy started in September 2012.

Joshua :

Thanks. One sided break clauses are unlawful under the Unfair Terms in consumer Contracts Regulations and unenforceable. The landlord cannot rely on a one sided break clause.

Joshua :

See 3.65 here: http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

Joshua :

However the term being unlawful does not follow that a similar right is implied for you it just means the landlord cannot exercise it.

Joshua :

The failure to protect a deposit is as a result of the Localism Act a big problem for the landlord. He is liable to pay you the deposit and an amount equal to three times the figure in compensation at a courts discretion. Nor is he able to evict you whilst the deposit is unprotected. You can pursue such a claim at any time.

Customer:

Thank you. My partner and I are looking to buy a property of our own and just wanted an idea of what to expect when the time comes for us to serve notice.

Customer:

Whilst I understand the law regarding the Landlords obligation with our deposit could it be classed as a breach of contract on the basis that it is stated in our contract?

Joshua :

it is a breach of contract but it does not follow that the entire tenancy agreement is void as a result I regret. It means rather that you are entitled to damages.


The starting point in terms of leaving early is that you have signed a fixed tenancy and subject as follows you cannot unilaterally leave during that period as you have no contractual right to do so. However it is possible to escape early from the tenancy by asking the landlord to remarket the same. The landlord has a common law duty to mitigate his losses and as such must do his best to remarket the property. You would be liable for reasonable marketing costs notwithstanding the above associated with this together with any reasonable agency fees. The landlord cannot charge for his time as such unless he is acting as a professinoal agent. Your liability would end on the earlier of the end of your existing term or a new tenant being sourced to replace you - if that tenant pays a lesser rent than you you may be liable to pay the difference between the two but the landlord must do his best to replace you on the same terms including rent.

Joshua :

If he does not want to find a new tenant or is slow to do so or offers different terms - e.g. higher rent, he will be limited to demanding rent from you for no more than a period that would be reasonable to expect him to take to find a new tenant. Alternatively you could agree a fixed compensation proposal. The landlord cannot refuse to do anything at all or he will find that he is limited in the amount of continuing rent he can attempt to recover as above. Equally there is nothing stopping you advertising for a new tenant to replace you yourself. The landlord is bound to accept a new tenant unless he can show they are unsuitable - e.g. cannot afford the rent

Customer:

Thank you Joshua - that's very useful. Hopefully the potential threat of having to pay us 3 x rent for failure to protect our deposit may be enough for our Landlord and ourselves to part on amicable terms. We haven't broached the subject with him yet but wanted to know what we could expect. Once again thank you for your help.

Joshua :

4-8 weeks is normally sufficient time to find a new tenant in a buoyant rental market as we are presently experiencing and the landlord would likely be limited to roughly this period give or take in terms of rent he can demand if you wish to leave early.

Joshua :

That is quite true in that you could seek to use the threat of compensation as leverage but given your above common law rights you may be able to have your cake and eat it to some extent in terms of compensation if you so wished.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Something to think about! Thanks again.

Joshua :

Best wishes

Customer:

All done. Have submitted my rating.

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24551
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 4 other UK Property Law Specialists are ready to help you

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