Deposit on rented property and just got council house.

ShaShaBear

A friend of mine has just been formally approved for a council house and gets her keys next week. As soon as she received the notification from the council, she informed her landlord that she would be moving. She is currently a HAP tenant in the property and has been there for 3 years.
The landlord is being very shady about her deposit and has said she will only get it back if the house is rented by the end of the first week in July. She's just spotted that the house is up for rent for €300 p/m more than what she is renting it for.

The property is in immaculate condition, no damage done etc. Can they retain her deposit simply because she hasn't given enough notice for moving to a council house? It's a substantial deposit and she gave the landlord 4 weeks notice (56 days is the norm).

Samuel T. Cogley

Yes, as the required notice is the required notice funnily enough! However if it's in a rent pressure zone and the LL is trying to charge more than the allowed increase then you might have some leverage. The LL would also need to show they had actual losses from the lack of notice. If it's an in demand area I think that's going to be difficult. Oddly if they were taking another HAP tenant and it took that long to get everything sorted who knows... maybe that would be a reasonable excuse to withhold some of the deposit.

ShaShaBear

Samuel T. Cogley wrote: »

Yes, as the required notice is the required notice funnily enough! However if it's in a rent pressure zone and the LL is trying to charge more than the allowed increase then you might have some leverage. The LL would also need to show they had actual losses from the lack of notice. If it's an in demand area I think that's going to be difficult. Oddly if they were taking another HAP tenant and it took that long to get everything sorted who knows... maybe that would be a reasonable excuse to withhold some of the deposit.

I did see on the RTB and Threshold that breaking the lease or not giving required notice wasn't a good enough reason for retention of deposit, but she's worried as she was relying on it to help with the move. It's not a rent pressure zone, but she's concerned that with the increase in rent, there might be an intent to keep the deposit. It says on the Daft ad that they are currently "compiling a waiting list", which seems like it's delaying the process even further?

Loveinapril

ShaShaBear wrote: »

It's a substantial deposit and she gave the landlord 4 weeks notice (56 days is the norm).

Would it not be cheaper to pay the extra two weeks rent and officially move out on the 56th day? I know she would be paying two rents but it may work out cheaper than losing a whole deposit.

ShaShaBear

Loveinapril wrote: »

Would it not be cheaper to pay the extra two weeks rent and officially move out on the 56th day? I know she would be paying two rents but it may work out cheaper than losing a whole deposit.

Her HAP has been cancelled effective the day she gets the keys to her council property, so she would not be able to afford this, not even close.

Samuel T. Cogley

ShaShaBear wrote: »

I did see on the RTB and Threshold that breaking the lease or not giving required notice wasn't a good enough reason for retention of deposit, but she's worried as she was relying on it to help with the move. It's not a rent pressure zone, but she's concerned that with the increase in rent, there might be an intent to keep the deposit. It says on the Daft ad that they are currently "compiling a waiting list", which seems like it's delaying the process even further?

I stand to be corrected but I'm not seeing that on my cursory inspection of the RTB website. Threshold I would be quite dubious of given some of the advice they give being shall we say more practical than legal.

If she was assigning the lease then there would certainly be no grounds for retaining the deposit but if she's simply not giving statutory notice as required under Part IV I (to be fair assumed) the LL would be entitled to look for damages. Perhaps the LL would need to seek this through the RTB, much like a tenant cant withhold rent.

Pkiernan

God forbid rules should have to apply to a tenant.

ShaShaBear

Samuel T. Cogley wrote: »

I stand to be corrected but I'm not seeing that on my cursory inspection of the RTB website. Threshold I would be quite dubious of given some of the advice they give being shall we say more practical than legal.

If she was assigning the lease then there would certainly be no grounds for retaining the deposit but if she's simply not giving statutory notice as required under Part IV I (to be fair assumed) the LL would be entitled to look for damages. Perhaps the LL would need to seek this through the RTB, much like a tenant cant withhold rent.

If the case is that she loses the deposit and that is legal then so be it. I was just curious myself considering the council themselves are leaving her with no other option but to move as she can no longer afford the rent without HAP so will have to move into the council accomodation. In normal renting circumstances I do see why the landlord would retain rent in this instance, I just assumed with the council paying the bulk of the rent to the landlord that there might be something there with regards to notice periods due to offers of council property, especially since I highly doubt that "contract isn't up on my rental" is an adequate reason to turn down a council house.

Samuel T. Cogley

ShaShaBear wrote: »

If the case is that she loses the deposit and that is legal then so be it. I was just curious myself considering the council themselves are leaving her with no other option but to move as she can no longer afford the rent without HAP so will have to move into the council accomodation. In normal renting circumstances I do see why the landlord would retain rent in this instance, I just assumed with the council paying the bulk of the rent to the landlord that there might be something there with regards to notice periods due to offers of council property, especially since I highly doubt that "contract isn't up on my rental" is an adequate reason to turn down a council house.

Joined up thinking isn't something that's taking place with accommodation but I don't want to turn this into a political rant. Just to reiterate though she can't lose the deposit, just lose the damage done to the LL who is under an obligation to mitigate that damage. That, should realistically, be very little in the current climate but for all I know this could be a cottage in the middle of no where so it's difficult to comment there.

My musing was though that as a LL can no longer discriminate against a HAP tenant, he can't mitigate his loss if it takes HAP ages to get the new tenant in. It's a rather OT point and more thinking out-loud so please ignore it.

ShaShaBear

Samuel T. Cogley wrote: »

Joined up thinking isn't something that's taking place with accommodation but I don't want to turn this into a political rant. Just to reiterate though she can't lose the deposit, just lose the damage done to the LL who is under an obligation to mitigate that damage. That, should realistically, be very little in the current climate but for all I know this could be a cottage in the middle of no where so it's difficult to comment there.

My musing was though that as a LL can no longer discriminate against a HAP tenant, he can't mitigate his loss if it takes HAP ages to get the new tenant in. It's a rather OT point and more thinking out-loud so please ignore it.

It's actually in a sought-after estate in a town bordering on city credentials and while it has gone up €300 monthly, it's still under rent allowance limits for a family with 2 children in that area so I did think it would be surprising if it took long to rent, considering it's a real catch of a house. It's just good to know that it would require some groundwork and proof on the landlord's part to show that he was at a loss. I don't think my friend would dispute it if that were the case, we were both more concerned that it was a blanket "No deposit for you, you're 28 days short".

I understand regarding HAP tenancy, it really isn't flowing with reasons to fill a landlord with confidence

Mrs OBumble

What she should have done is agreed a shorter notice period with the landlord: if they can get an extra 300 per month for it, then they'd likely be very agreeable to having her move out earlier than expected.

But seeing as she didn't think to do that, then what the LL is really doing is returning the deposit, but using the cash from it to cover the last month's rent which the tenant is refusing to pay.

It's really poor form of the council to have set her up in this way. Many a council tenant would react by immediately going in to arrears with their council rent, so as to not be paying double rent. And then they would gradually work off those arrears by overpaying the rent by E5 or E10 per week over the next however-many months.

I'm not advising this course of action ... just saying that it's what many would do.

Victor

Loveinapril wrote: »

Would it not be cheaper to pay the extra two weeks rent and officially move out on the 56th day? I know she would be paying two rents but it may work out cheaper than losing a whole deposit.

56 days is 8 weeks.

ShaShaBear

Mrs OBumble wrote: »

What she should have done is agreed a shorter notice period with the landlord: if they can get an extra 300 per month for it, then they'd likely be very agreeable to having her move out earlier than expected.

But seeing as she didn't think to do that, then what the LL is really doing is returning the deposit, but using the cash from it to cover the last month's rent which the tenant is refusing to pay.

It's really poor form of the council to have set her up in this way. Many a council tenant would react by immediately going in to arrears with their council rent, so as to not be paying double rent. And then they would gradually work off those arrears by overpaying the rent by E5 or E10 per week over the next however-many months.

I'm not advising this course of action ... just saying that it's what many would do.

She went to her landlord and explained that she had been offered a council house, presented the dated correspondence to show she had literally just been informed, and explained that she didn't know when she would be moving, but that this was the earliest notice she could give. She supplied written notice at this time. The landlord wasn't happy, so I'm not exactly sure how she could have "thought of" agreeing something with the landlord when he wasn't agreeable to it.
She's also not refusing to pay the last month of rent - she will have vacated the property, handed back keys and began residing in her council home before the month she has already paid for has ended. The landlord is suggesting that if the property is not let by the end of the first week in July, that she is responsible for compensating him for an entire month of lost earnings as opposed to the week it would be at that point.

Given the lengthy contract she has just signed with the council - a stable home for her and her family, I agree that her being behind on her rent immediately would not be an advised course of action and I have no idea why anyone would do it!

myshirt

In the overall scheme of things it's buttons because you will be on a differential rent, and also consider you have had the state subsidise your rent for a long time. It's buttons in the overall scheme of things. The landlord is ultimately entitled to hold on to the deposit.

Check with your friend where she got the deposit, as sometimes it has come from a CWO. Additionally, if there is no flooring or you need anything for the house, cooker, washing machine, couch, wardrobes etc, the CWO will give you a cheque, despite what you Google or read on here. Best wishes with the new place.

ShaShaBear

myshirt wrote: »

In the overall scheme of things it's buttons because you will be on a differential rent, and also consider you have had the state subsidise your rent for a long time. It's buttons in the overall scheme of things. The landlord is ultimately entitled to hold on to the deposit.

Check with your friend where she got the deposit, as sometimes it has come from a CWO. Additionally, if there is no flooring or you need anything for the house, cooker, washing machine, couch, wardrobes etc, the CWO will give you a cheque, despite what you Google or read on here. Best wishes with the new place.

It was a deposit from her own purse as she was in full time employment when she moved into the house. The deposit is 4 digits and not exactly buttons when you are moving house. She knows about the grant from the CWO but like I would myself, she would probably have hoped to get back her deposit and not have to ask for more money.

I'm getting mixed responses. Some are saying he is entitled to retain the deposit, and others are saying he is only allowed to retain his loss and has to prove it as well. I suppose it would come down to him proving how long the house was idle for between the start of the rental month and when the new tenant moves in.

Michael D Not Higgins

ShaShaBear wrote: »

It was a deposit from her own purse as she was in full time employment when she moved into the house. The deposit is 4 digits and not exactly buttons when you are moving house. She knows about the grant from the CWO but like I would myself, she would probably have hoped to get back her deposit and not have to ask for more money.

I'm getting mixed responses. Some are saying he is entitled to retain the deposit, and others are saying he is only allowed to retain his loss and has to prove it as well. I suppose it would come down to him proving how long the house was idle for between the start of the rental month and when the new tenant moves in.

The deposit is allowed to be retained for a loss incurred by the landlord because of the actions of the tenant. In this case, the landlord is entitled to the correct notice period but is also obliged to mitigate their loss by renting the property as soon as possible. The amount of deposit allowable to be retained is the rent which covers the period where the property is actually vacant within the time of the notice period.

Also be aware if there are any additional costs withheld from the deposit for damage, it must be accompanied by receipts to show the cost.

pilly

The other thing is OP, the council might be delayed in handing over the keys so that would help.

ShaShaBear

Michael D Not Higgins wrote: »

The deposit is allowed to be retained for a loss incurred by the landlord because of the actions of the tenant. In this case, the landlord is entitled to the correct notice period but is also obliged to mitigate their loss by renting the property as soon as possible. The amount of deposit allowable to be retained is the rent which covers the period where the property is actually vacant within the time of the notice period.

Also be aware if there are any additional costs withheld from the deposit for damage, it must be accompanied by receipts to show the cost.

Thanks - I had told her to take timestamped photos to have proof of the condition of the house. I've been in it very recently so I know there is no damage to the property and I've talked to her about asking for receipts if they claim work needs to be done.
Hopefully the property is not idle for long, but assuming it is rented within the next week with a tenant moving in immediately, is it fair to assume that she *should* get her deposit back, since she has paid her rent up to date and the landlord will at most have incurred a week of idleness?

pilly

ShaShaBear wrote:

Thanks - I had told her to take timestamped photos to have proof of the condition of the house. I've been in it very recently so I know there is no damage to the property and I've talked to her about asking for receipts if they claim work needs to be done. Hopefully the property is not idle for long, but assuming it is rented within the next week with a tenant moving in immediately, is it fair to assume that she *should* get her deposit back, since she has paid her rent up to date and the landlord will at most have incurred a week of idleness?

So he can deduct a weeks rent from it.

ShaShaBear

pilly wrote: »

The other thing is OP, the council might be delayed in handing over the keys so that would help.

The landlord is insisting on the keys back at the end of the week, so I hope not for her sake :pac:

On a side note, it's a real nuisance, but also an eye-opener. We're on the council waiting list ourselves and also rent privately, so it's definitely something I should discuss with my own landlord when I next see him.

ShaShaBear

pilly wrote: »

So he can deduct a weeks rent from it.

That's fine. Again, she's not disputing it, she just wanted to know (as did I for curiosities sake) how much she was responsible for. Probably something the council could look into perfecting for the sake of the landlord - as I imagine other properties would be significantly more difficult to rent out after a tenant has left. In my own case, we could afford to pay the rent in both properties if it happened to us, but we live in a low rent area and are blessed in that regard. She did ask the council several times of a reasonable timeframe as to when to expect to have to move in, as she had to give notice, and they were very nonchalant about it.

antoinolachtnai

ShaShaBear wrote: »

That's fine. Again, she's not disputing it, she just wanted to know (as did I for curiosities sake) how much she was responsible for. Probably something the council could look into perfecting for the sake of the landlord - as I imagine other properties would be significantly more difficult to rent out after a tenant has left. In my own case, we could afford to pay the rent in both properties if it happened to us, but we live in a low rent area and are blessed in that regard. She did ask the council several times of a reasonable timeframe as to when to expect to have to move in, as she had to give notice, and they were very nonchalant about it.

I don't think you can rely on having any entitlement to get any of that deposit back. The landlord has a statutory entitlement to notice (as does the tenant). If you give one week's notice and the landlord is entitled to four weeks notice, you shouldn't be too surprised if you lose three weeks' deposit.

Statutory notice has nothing to do with damages or mitigating losses.

In my mind at least, it is different from the situation where there is a contractual entitlement to retain a deposit or seek damages from.

This seems clear enough to me from Section 37(4) of the RTA. Vacating the property early does not mean that the tenant does not owe rent for the entire notice period.

The tenant could agree with the landlord to give the property back early (before the notice is elapsed) and in return get her deposit back. But the tenant and landlord would need to agree this. I do not see how this could be an entitlement.

Samuel T. Cogley

antoinolachtnai wrote: »

I don't think you can rely on having any entitlement to get any of that deposit back. The landlord has a statutory entitlement to notice (as does the tenant). If you give one week's notice and the landlord is entitled to four weeks notice, you shouldn't be too surprised if you lose three weeks' deposit.

Statutory notice has nothing to do with damages or mitigating losses.

In my mind at least, it is different from the situation where there is a contractual entitlement to retain a deposit or seek damages from.

This seems clear enough to me from Section 37(4) of the RTA. Vacating the property early does not mean that the tenant does not owe rent for the entire notice period.

The tenant could agree with the landlord to give the property back early (before the notice is elapsed) and in return get her deposit back. But the tenant and landlord would need to agree this. I do not see how this could be an entitlement.

Interesting take on the situation. However where the LL is renting it out to someone else during the notice period, or asking for the keys back during the notice period he is double dipping and it's not going to be looked on favourably by the RTB.

What you're suggesting maybe the case but I would think the LL would have to simply refuse to rent it out before the 56 day notice expires and the tenant could (and I stand to be corrected here) refuse to facilitate viewings so the LL is still at a loss, probably a bigger one with no deposit retention to fall back on.

antoinolachtnai

RTB can look on it any way they like, but from what I can see the landlord is entitled to statutory notice. There is no such thing as 'double dipping' in tenancy law. There are unfair terms, certainly, but that has to do with contracts, not statutory entitlements.

Yes, the tenant does have some basis from which to negotiate.

However, it appears that the landlord can re-enter once the tenant vacates. The tenant does not have to return the keys for the landlord to re-enter in this situation.

Browney7

If I was the tenant I wouldn't hand back keys until deposit situation is clarified by landlord. If it's a "I'll send a cheque in the post" arrangement forget it.

People need to be pragmatic here - he should have no problem letting it relatively quickly. He's had to all intents and purposes a "good" tenant and not one of the "all tenants are out to rip you off" cohort that doomsdayers on this forum say are everywhere. Dialogue is the best course of action - facilitate all viewings etc and both parties should move on happy out.

antoinolachtnai

That is great, but the landlord is entitled to statutory notice. It is an entitlement just like unemployment assistance rent allowance or tax (for for the government). It is not a courtesy and not a contractual nicety.

But dialogue is certainly the way to go here.

ShaShaBear

antoinolachtnai wrote: »

That is great, but the landlord is entitled to statutory notice. It is an entitlement just like unemployment assistance rent allowance or tax (for for the government). It is not a courtesy and not a contractual nicety.

But dialogue is certainly the way to go here.

I fully agree with you on this. The issue here is not that my friend has not given the required notice, but rather than the council does not facilitate people who have entered into contracts when they offer out housing. In my case, the deposit is very small as we are in a low rent area, so we could afford to forgo it, but in the case of my friends it is a 4-digit deposit that she was hoping to use instead of begging from the CWO. I think it's a bit unfair that she has to sully her reputation as a tenant because the council expects her to jump ship and move into their house or else risk having it handed to the next suitable person. The landlord is also obviously suffering here, and more so since at the end of the day, my friend has somewhere to live but he has still to find a tenant.

I genuinely just assumed there was something in place whereby the council allowed you to fulfill your obligations as a tenant before cutting you off

Samuel T. Cogley

antoinolachtnai wrote: »

RTB can look on it any way they like, but from what I can see the landlord is entitled to statutory notice. There is no such thing as 'double dipping' in tenancy law. There are unfair terms, certainly, but that has to do with contracts, not statutory entitlements.

Yes, the tenant does have some basis from which to negotiate.

However, it appears that the landlord can re-enter once the tenant vacates. The tenant does not have to return the keys for the landlord to re-enter in this situation.

I would have to disagree on the first point. I cant see how two concurrent tenancies could exist. However I take your points on no contractual obligations here and entry, however I'd still argue that asking for they keys back could also create issues.

I still have to wonder is there an obligation to mitigate damage, but thanks for the correction as per the letter of the legislation you're correct of course and thanks for the interesting discussion on the matter!

I wonder if you'd share an opinion, if you have one based on the legislation, on whether the LL can just deduct this from the security deposit or whether they have to raise a dispute.

dubrov

Your friend can just resign the lease. I.e. find someone else to finish out the lease. Given it is 300 below market rent it should be easy to find someone.

The landlord can also find someone and pass on costs for doing so ( e.g loss of rent for transition period, advertising fees).

However, they can't increase the rent and charge losses. That would be like having your cake and eating it.

davo10

Forget reassignment in this case, this property is not in a RPZ, the LL will want the op out and a new tenancy to begin at a higher rate, which is his right . If the LL refuses to reassign (which he will), then the op is entitled to break the term tenancy (which he/she is doing anyway) but would still have to serve the required 8 week notice.

Op, you are due your deposit back less any costs incurred by the LL in re-letting the property.

antoinolachtnai

Samuel T. Cogley wrote: »

I would have to disagree on the first point. I cant see how two concurrent tenancies could exist. However I take your points on no contractual obligations here and entry, however I'd still argue that asking for they keys back could also create issues.

Two tenancies don't exist. The first one ends when the first tenant vacates. The law is crystal clear.

I still have to wonder is there an obligation to mitigate damage, but thanks for the correction as per the letter of the legislation you're correct of course and thanks for the interesting discussion on the matter!

I wonder if you'd share an opinion, if you have one based on the legislation, on whether the LL can just deduct this from the security deposit or whether they have to raise a dispute.

Mitigating damage is a thing to do with contractual liability. It isn't a contractual liability. It's a statutory liability.

They can just deduct it. They don't need to rely on the lease to do this. There's a statutory provision. It's unpaid rent.

Section 37 read in conjunction with 12(4) is crystal:

37 (4) Nothing in the preceding subsections affects the liability of the tenant for rent for the period that would have elapsed had a notice of termination giving the required period of notice been served by him or her.

12 (4) Subsection (1)(d) applies and has effect subject to the following provisions:

(a) no amount of the deposit concerned shall be required to be returned or repaid if, at the date of the request for return or repayment, there is a default in—

(i) the payment of rent and the amount of rent that is in arrears is equal to or greater than the amount of the deposit ...