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Thomas
Thomas, Lawyer
Category: UK Property Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Good Afternoon I already asked about my tenancy agreement

Customer Question

Good Afternoon

I already asked about my tenancy agreement here - http://www.justanswer.com/uk-property-law/7ncb1-good-morning-started-renting-apartment-weeks-ago-contract.html I wanted to finish it earlier because big problem with noise. My agreement is basing on AST and it is with changes (for example pay £2600 when breaking contract before 1 year and there is removed section to leave after 6 months).

Situation has changed because I'm leaving UK at end of August and landlord wants penalty fee but he agreed to decrease it from £2600 to £1800.

However on internet I found http://www.justanswer.com/uk-property-law/71ait-situation-tenants-leaving-rented-flat-months.html that when landlord doesn't put deposit on deposit scheme it means "tenancy is illegal and therefore unenforceable.". I think that landlord didn't put deposit on scheme because I haven't got any notification on it. Is it true that "tenancy is illegal and therefore unenforceable." and I'm not obligated to pay tenancy fee? How I can deal with it to not to pay penalty fee £2600 and can back full deposit £1800? Above link seems show similar situation and recommends sue over site www.moneyclaim.gov.uk.

Today I got info from Citizen Advice Bureau that I can sue lanlord for not putting in 30 days deposit on scheme but probably he will able to sue me for not paying penalty fee £2600 because deposit and agreement are kind of separate. However I'm not sure if people from my Citizen Advice Bureau have right here.

Regards
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

I’m afraid that you are slightly misreading the answer to the question that you have linked to. I believe my colleague was referring to the fact that if the deposit has not been placed in a scheme then they cannot get possession of the property until such time as the deposit has been registered with a scheme. This is because no notice for eviction is valid if the deposit has not been registered.

In the first instance you should ask for details of the tenancy deposit scheme, stating that you have not received these yet and give them 7 days to respond. If they do not respond then you can threaten to issue (or actually issue) proceedings against them for the return of the whole of the deposit and a fine of three times the deposit amount if it has not been placed in a scheme.

IN practice it is quite difficult to get the fine of three times the deposit amount actually enforced though.

The Cab is correct in my view in that if you terminate the tenancy unilaterally then they would be able to sue you for the penalty fee because the contract is separate in this regard and you would have breached it.

My advise, again, would be to focus on finding a replacement tenant. Once you have found one and they have accepted them then you would be well placed to defend any action for the penalty fee because under contract law a person is only entitled to damages to put them in the position that they would have been in if the breach had not occurred.

If you do issue proceedings for the return of the deposit because they do not provide you with details of the scheme then you can offer to withdraw proceedings for the fine of three times the amount (but not the actual deposit amount which should still be returned to you) provided that they agree not to enforce the penalty fee. You would have to get it in writing from them that they surrender their right to enforce the penalty fee in consideration for you withdrawing your deposit claim against them.

Good luck

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Kind regards,


Tom
Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 6387
Experience: BA (Hons), PgDip, Practising Solicitor
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