Phoenix Legal Limited recently acted on behalf of a client who paid a tenancy deposit to their landlord when they moved into their property in September 2013.
Our client occupied the property in September 2013 on a 12-month tenancy agreement and paid £675 to their landlord. The landlord attempted to get around the deposit issue by saying that the payment was “rent in advance”, and that if they leave the property in a good condition, they will get a “bonus payment” of £675 for being good tenants.
During our clients’ time at the property, they signed a further 5 tenancy agreements covering the period 2014 – 2020, and the “rent in advance” was never used. Due to limitation issues, our client was only able to claim for 4 agreements.
At no point during our clients’ time at the property did the landlord protect the deposit or provide the relevant prescribed information to our client. Instead, the landlord was resolute in their belief that it was not a deposit and that it was orally agreed between the parties that the money was for the last month’s rent due. However, our client had paid rent for every month they were at the property.
Our client initially attained judgment in October 2020 against the landlord; however, the landlord applied to have the judgment set aside and the matter was sent back to court. Due to backlog at the court caused by Coronavirus, it was not until May 2022 that the matter was back before a judge.
During this time, Phoenix became aware that there was another tenant who had previously brought a successful claim against the same landlord for failing to protect their deposit as well. We obtained a copy of that Judgment to use to support our claim that this is something that this landlord fails to do for his tenants.
Several offers were made from the outset of the claim, all of which were rejected by the landlord.
At the hearing in May 2022, the Judge quickly distinguished between what payments constitute a discharge of an obligation (rent in advance) or security of a future obligation (deposit). The Judge took the view that the monies paid could indeed be “rent in advance” but for the fact that the tenancy agreement made no mention of how that money was to be used and further issues presented such as the initial payment of £675 in question was actually great deal lesser than the last month’s rent due in the Autumn of 2020.
As such, Judgment was awarded in favour of our client and it was determined that the monies were actually a deposit. The Judge remarked:-
There is no express provision of the tenancy saying that it is rent in advance. The oral agreement, if it is to be consistent with the express terms of the tenancy, was to pay the last months of the tenancy, and the Claimant was expected to pay to the last day of the tenancy. The last months rent did not fall due until that date of the tenancy, and payment can only be a payment for security that will fall due on that day of the tenancy. Therefore, in my judgment, the last months rent was payable in advance, must have been security for the last months rent and not of discharging. At no point during the proceedings did they [Landlord] say that the last months rent was not paid. If the tenant had not have done so, one could perceive why she didn’t pay, and the response may have been that she paid it at the start of the tenancy. But this was not part of their case. It seems to me that the rent was paid as it was fell due. It is therefore a security, not a discharge, as rent was due at the end the end of the tenancy.
Further, Phoenix Solicitors were successful in arguing that each signed tenancy agreement (and periods of time where there is no signed tenancy agreement) were to be counted as separate breaches of the Tenancy Deposit Rules. As such, our client was allowed to claim for each of the tenancy agreements they signed, and the Judge awarded a total of £13,151.48.
A special thanks goes out to Mr Gary Donaldson, Atlantic Chambers, who had conduct of the litigation at Court and was instrumental in helping our client succeed.
Robert Porter is a Trainee Solicitor at Phoenix Legal Limited, and has experience & knowledge in handling Landlord and Tenant matters. If you have a claim for your landlord not protecting your deposit, or are unsure if you do, contact Robert Porter on rp@phoenixlegalsolicitors.co.uk or call 0151 306 3694.