Deposit Returned

[CoteNest14]

Hello, I am hoping for some advice please.

I am a tenant 3 years into a rolling periodic AST. Background info, I recently complained to my landlord about several issues.

My landlord emailed a couple of days ago stating she proposes to increase my rent. She did not say how much this will be and wants to come out and discuss it urgently in person; I gather the increase will be effective immediately.

But strangely, she went on to say she has returned my deposit, in full. I can confirm a payment has been made into my bank account sent from her personal bank account. Although there is no reference to identify it as my returned deposit, the sum matches.

She said she had returned the deposit ‘due to recent changes in legislation’ she did not go into detail about this. She goes on to say ‘it may be the case in due course that I ask you for the new maximum amount of 5 weeks rent as a deposit’

I am aware of recent legislation regarding fee's and the deposit cap, but believe this legislation applies to new tenancies only? I also understand she cannot set up a new tenancy agreement, unless we both agree?

My deposit (she returned) was protected with MyDeposits (custodial scheme) and is still showing as registered with them. Am I correct in understanding that she should have followed a proper procedure to return my deposit and that would be through MyDeposits, not via her personal bank account?

Could anyone advise me if she has acted lawfully regarding my deposit, and does this affect my current tenancy agreement in any way?

Also, can she ask for a new deposit 3 years into a rolling AST, as i mentioned at this point I don't even know how much this would be.

I am feeling confused and concerned she is preparing to evict me because I complained.

Apologies for all the questions and appreciate any advice!

Thank you

[lgfa92]

The landlord cannot unilaterally terminate a tenancy without your agreement or due legal process - simply returning a deposit (or equivalent amount) does not end the tenancy.

As mydeposits clarify "The mydeposits landlord member must lodge the deposit with mydeposits for the duration of the tenancy. Both member and tenant must authorise the deposit release before mydeposits returns the deposit"

[R0b]

I am aware of recent legislation regarding fee's and the deposit cap, but believe this legislation applies to new tenancies only? I also understand she cannot set up a new tenancy agreement, unless we both agree?

Applies to renewals also on or after 1 June 2019. You are right that your landlord can't set up a new tenancy without your agreement but could instead serve notice to evict you. Equally, if there is a rent increase clause then your landlord could use that to increase the rent or, if there is no rent clause as such, I believe your landlord could increase the rent known as a section 13 rent increase.

If your landlord has suddenly decided to increase the rent it could be as a result of your landlord's letting agent (if he or she has one) increasing their fees due to the Tenant Fees Act.

Have you checked your tenancy agreement to see if it covers rent increases? Usually you are given some notice before the increase takes effect rather than immediately.

[CoteNest14]

Thank you both very much for your replies!

LGFA92, that’s great to know, my first thought was that her actions had terminated the current agreement, which I’m happy with as is.

Thank you for the info about the deposit, I had a feeling there was a proper process to refund, I'm guessing she wanted to return it fast rather than go through the proper process but I am not sure why, unless she is intending to evict me. I've not heard from MyDeposits so presume the actual deposit is still held with them.

Rob, thank you, I have checked the agreement and can confirm there is a rent review clause which allows her to increase the rent without giving me notice. There are no figures to indicate how much the increase will be just the wording in 'line with the open rent market'

It doesn’t leave me with much time to negotiate a fair increase, research current market etc.

Could I challenge the 'no notice' part of the rent review clause as an 'unfair term'? Is there any legislation that might help me with this?

Thank you again for your time!

[steveeasy]

I have little knowledge on this topic at all. BUT, if your deposit was not handled correctly (is it not the case your landlord would be unsuccessful in a no fault section 6a notice. Its very strict in what is submitted and being unable to present a current deposit protection she would be unsuccessful. some one will clarify this for you in detail. but id go quite on this one as it might be to your advantage in many ways. she would always be unsuccessful.

[R0b]

Rob, thank you, I have checked the agreement and can confirm there is a rent review clause which allows her to increase the rent without giving me notice. There are no figures to indicate how much the increase will be just the wording in 'line with the open rent market'

It is not unreasonable to have a rent clause in the contract and I think it is also not unreasonable to increase it in line with the open rent market, though I think if the rent did increase then you could challenge it by asking the landlord on what basis is the rent being increased and to provide evidence on how the increase has been calculated. The onus is on the landlord to show that the increase is within the reasonable rent band for that property, so this would be based on property type, number of rooms, location etc. For example comparing a property that's smack in the middle of a city centre with one that is on the outskirts might be considered unreasonable.

Having said the above, the rent review clause may be considered unfair in that it allows the landlord to increase the rent without giving any notice. However, that might be difficult to argue if you are simply on a rolling AST rather than a fixed term. Still, you could argue that it is still unfair as reasonable notice should be given to enable you to consider whether you wish to remain in the property and pay the new price. What's considered reasonabe notice depends on the facts but I would think that at least a months' notice, possibly two would be reasonable.

You should familiarise yourself with the new Tenant Fees Act 2019, which will govern all tenancies and renewals entered into after 1 June but the application is deferred for existing tenancies for 12 months. In case you aren't aware, I've attached the guidance drafted by Government which is help in giving an overview of the new Act. If the landlord chooses to increase the rent for one month and then drop it for the remainder, that should ring alarm bells to you because the TFA prohibits that.

Even if the landlord seeks to increase the rent, you could always negotiate and say if the rent increases then you will seek accommodation elsewhere though I appreciate if you alreayd like where you are now.

[CoteNest14]

Thank you Steveeasy, I will make a note of that!

Thank you Rob, I will have a read through the attachment and appreciate you taking the time to write such an in depth and helpful response