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  • Is Rent in Advance a Deposit?

    The question of whether rent paid in advance is a tenant’s deposit is to be decided by the Court of Appeal in March.

    Why is this important?

    Because the Section 21 would be invalid and the Landlord liable to pay the tenant up to 3 times the original deposit paid (multiply this by six months, not funny!!) The case of Johnson v Old was heard last January at Brighton County Court, which held that the advance rent of six months was a deposit and the Section 21 notice was invalid. Deputy District Judge Collins dismissed the landlord’s claim for possession and ordered the landlord to pay the tenant’s costs.

    However, this judgment was overturned on an appeal last July, also in Brighton County Court, by His Honour J Simpkiss, who decided that advance rent was not a deposit. As a result, possession and costs were awarded to the landlord. The tenant then applied direct to the court of appeal using the same arguments as before and was given leave to appeal, which is due to be heard in March.

    A tenancy deposit is defined in section 212 of the Housing Act 2004 as follows: “tenancy deposit”, in relation to a Shorthold Tenancy, means any money intended to be held (by the landlord or otherwise) as security for— (a) the performance of any obligations of the tenant, or (b) the discharge of any liability of his, arising under or in connection with the tenancy. In the case of UK Housing Alliance (North West) Ltd v Francis. It was held that when considering the definition of a ‘tenancy deposit’ it is necessary to read the Act as a whole and, when one does so, one sees a pervading reference to money “paid” by the tenant to the landlord, “received” by the landlord and “repayable” by the landlord to the tenant.

    Therefore the rent money is not a tenancy deposit. The money has been taken in connection with an Assured Shorthold Tenancy but it is not security for an obligation, it is the obligation itself. It is perfectly clear it is not money paid to the landlord with any intention that it be repaid, the landlord will be keeping the money whatever the tenant does!

    Gaining Access the 24 Hr Rule


    Help, I need to carry out a Gas safety Certificate on my rented property, but the tenant keeps saying it is inconvenient. As a Landlord it is my duty to ensure a current certificate is always in place. Can I go in with my keys with the Gas Engineer as long as I give the minimum 24 hours notice?


    This is a very common question I get asked, whether it be for the Gas Safety Certificate as in your situation or general repairs or viewings. Most tenancies have written in to permit access after 24 hours notice, however this is for emergencies only (and that means something serious, such as a fire).

    A tenancy gives exclusive possession of a property to the tenant and they have the right to ‘quiet enjoyment’ during their tenancy, a term or concept which is implied in all Tenancy Agreements. This means the Landlord should leave tenants to live in the property in peace. The tenants’ right to keep everyone out of his property will override and access can only be gained by invitation or acceptance from the tenant.

    You can apply to the courts for an injunction to gain access. The general rules are if after three attempts (and you can prove this by copies of letters) you have still not gained entry and you have reported it to health and safety you will not be prosecuted.

    This is probably not what you want to hear, however the law is strict on this. Under no circumstances try to access the property with your own keys without agreement from the tenant.

    How much notice to leave should I give my…


    I have been renting a property for the last two years and I am presently in a rollover tenancy, my initial tenancy was for six months. I pay my rent on the 15th of each month. I recently  gave my landlord a month’s notice on the 25th April to move out on the 25th May, however, I have been told that it should be given on my rent due date of the 15th and I must also give two months’ notice. I really need to move out, is this correct?


    Once a fixed period Assured Shorthold Tenancy rolls over, past it’s fixed term period, then the tenancy becomes a periodic tenancy, and if the rent is paid monthly, then EACH month becomes a statutory periodic tenancy, the same legislated for under the Housing Act 1988.

    The Housing Act clearly states the landlord must give the tenant two months written notice (normally by Section 21, this is different to the Section 21 Notice during a fixed term), however, a tenant can give notice by way of the same way they pay rent. Therefore, as you pay monthly, you only need to give a month’s notice, in writing.

    The dates are important and this is where your landlord is correct, you must give notice on your rent due date. Your rent due date (assuming the day you pay rent is the same as your rent due date on your tenancy agreement) is the 15th, so notice will start from the next 15th to expire on the 14th. In your case you gave notice on the 25th April, the next rent due date would be the 15th May and this would be when your month’s notice would commence for you to vacate on the 14th June.

    Handing over the keys at the end of a…


    My girlfriend and I moved out of our property last month at the end of our tenancy. We then went on holiday for two weeks and realised we had not handed in our keys , which we duly did on our return. The landlord is insisting on charging us two weeks extra rent and wanting to deduct it from our deposit. Can he do this? I have looked all through my tenancy agreement and cannot find any details on this.


    If a tenant fails to return the keys, this is normally taken to mean he has not given up the tenancy and therefore can be open to lots of issues for the landlord, even if the tenant has actually moved out. Handing in your keys is your officially surrendering of the property at the end of your tenancy. (I will add this does not apply during a tenancy). It could be deemed that as you have held on to the keys you were still intending to re-enter the property, maybe you still had belongings inside?. Also, for the all the landlord knew, you might have deliberately withheld the keys because you still needed to use the property itself.

    A landlord cannot re-let a property until he has received the keys back, unless he arranges to have the locks changed. However, he needs to be careful about changing the locks, as the tenant may then claim unlawful eviction, which is a criminal offence. Therefore, it is not unreasonable for your landlord to claim the two weeks rent from your deposit.