Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Deposit & Rent payments taken and then No Flat

Re: Deposit & Rent payments taken and then No Flat

Postby theycantdothat » Wed Sep 21, 2016 11:09 pm

dls wrote:
the creation by parol of leases taking effect in possession for a term not exceeding three years


That was the wording I was looking for. The issue would be whether it took effect in possession. Since possession was never granted, it did not take effect, and no contract was in place?


No tenancy arose because possession was not given. However, that does not mean that a contract to grant such a tenancy did not arise.

There are two separate provisions:

The LPA 1925 which provides that a tenancy taking effect in possession can be created orally.

The LP(MP)A 1989 which provides that a contract to grant such a tenancy does not need to be in writing. Any such contract, whether written or oral, is executory only and the tenancy does not start until the tenant goes into possession.

Since a contract for the grant of a tenancy for a term of three years or less requires no special formalities if all the conditions for the creation of a contract can be proved there will be a contract.
theycantdothat
 
Posts: 1103
Joined: Fri Nov 02, 2012 7:36 pm

Re: Deposit & Rent payments taken and then No Flat

Postby diy » Thu Sep 22, 2016 9:48 am

It doesn't sound like the OP's son quite managed to take possession. However, I'd be very surprised if an AST wasn't signed by the OP's son at the time of making payments. Its odd to make arrangements to move in on Sunday and not have signed an AST before saturday. Had the OPs son moved in without signing the AST it would leave the LL exposed.

I wonder if there is a deposit protection angle here?
My suggestions are not legal advice
User avatar
diy
 
Posts: 2501
Joined: Fri Nov 02, 2012 10:06 pm

Re: Deposit & Rent payments taken and then No Flat

Postby atticus » Thu Sep 22, 2016 10:44 am

No quite about it. The OP's son never came anywhere near to taking or being given possession. And we are told there is no tenancy agreement.

I have said what I think should be done.
User avatar
atticus
 
Posts: 19204
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Deposit & Rent payments taken and then No Flat

Postby theycantdothat » Thu Sep 22, 2016 11:17 am

The problem in this sort of situation is that it can be difficult to identify the point at which any contract was concluded. The fact that only one party (inevitably the tenant) has signed an agreement is not necessarily conclusive. Unfortunately some landlords and agents engage in sharp practice by procuring signed contracts from tenants without handing over in exchange a part signed by or on behalf of the landlord. The tenant thinks he has deal, but if the landlord decides not to let or to let to someone else the tenant is told that "the landlord never signed so he's not bound". Of course, since writing is not required the absence of a contract signed by the landlord is not fatal to a claim by the tenant that there is a contract.

The point about a deposit is worth following up. If a deposit as defined by the Housing Act 2004 was taken then it has to be dealt with in accordance with a scheme "as from the time when it is received", which can be before any tenancy starts. If the statutory requirements were not complied with "compensation" is payable.
theycantdothat
 
Posts: 1103
Joined: Fri Nov 02, 2012 7:36 pm

Re: Deposit & Rent payments taken and then No Flat

Postby diy » Thu Sep 22, 2016 11:58 am

interesting... So if the 2 months in advance wasn't a contract, then it was held as deposit, in which case the deposit might perhaps be seen by a generous judge as the total deposit giving the Op a nice bargaining stick. I.e a claim for the deposit plus 2 months rent X 3.
My suggestions are not legal advice
User avatar
diy
 
Posts: 2501
Joined: Fri Nov 02, 2012 10:06 pm

Re: Deposit & Rent payments taken and then No Flat

Postby atticus » Thu Sep 22, 2016 12:01 pm

What is the rent, if there is no tenancy agreement?
User avatar
atticus
 
Posts: 19204
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Deposit & Rent payments taken and then No Flat

Postby theycantdothat » Thu Sep 22, 2016 12:48 pm

diy wrote:interesting... So if the 2 months in advance wasn't a contract, then it was held as deposit, in which case the deposit might perhaps be seen by a generous judge as the total deposit giving the Op a nice bargaining stick. I.e a claim for the deposit plus 2 months rent X 3.


The OP said: "He has paid all the fees and rental payments in advance, because the landlord wanted a year long agreement he has being paying rent, through the agent for the last two months prior to occupying the property." I was not suggesting that the sum described as rent was deposit, just that if a deposit had been paid it needed protecting as from the date it was received.

It is not clear from what the OP says whether any of the sums paid were supposed to be in respect of a period before the son was expected to take up occupation. It has to be doubted that it can be rent if the son was not entitled to occupation, though I suppose it can still be a sum contractually payable. Some landlords offering student accommodation seem to think they ought to be paid rent for periods when property is unoccupied. However, if the arrangement is that you pay money to secure the tenancy before you need it, that money has to be returned if the landlord repudiates the contract. If the landlord says there is no contract then it can be asked what the money was for and if the answer is anything like "...er..." then it has to be repaid.

The fact that "rent" was paid goes a long way to showing there was a contract, but in these cases the devil may be in the detail. Only someone knowing the full facts can give an informed opinion.

However, as has been said above, the first priority is to get back what has been paid and sort out alternative accommodation. Once the dust has settled consideration can be given to whether it is worth expending time, money and nervous energy suing the landlord.
theycantdothat
 
Posts: 1103
Joined: Fri Nov 02, 2012 7:36 pm

Re: Deposit & Rent payments taken and then No Flat

Postby atticus » Thu Sep 22, 2016 1:23 pm

Yes. KISS.

Money needs to be got back and accommodation found. Now is not the time to get way too clever and make claims (of unclear merit) that will only hold up the return of the cash.
User avatar
atticus
 
Posts: 19204
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Deposit & Rent payments taken and then No Flat

Postby theycantdothat » Thu Sep 22, 2016 3:59 pm

Just to add to what I said above, at one I thought I read that that a deposit had been paid, but was surprised i could not find a reference to a deposit when re-reading the OP's post. I have since spotted the word in the thread title, which explains all.
theycantdothat
 
Posts: 1103
Joined: Fri Nov 02, 2012 7:36 pm

Previous

Return to Landlord and Tenant Law

Who is online

Users browsing this forum: No registered users and 1 guest