Deposit - are we tenants yet?

eleven

Hi everyone.

My boyfriend and I saw a lovely 2 bed house for rent, viewed it, loved it put down a deposit of 900 quid on it (on tuesday night). A couple of days later my boyfriends work let some people go and said that they may be going to reduced hours.

So of course we're upset, we can't afford the new place anymore and contact the owner (on saturday), explaining our circumstances and requesting our deposit back. She is unwilling to do this.

Having investigated, it seems to me that a landlord can only withhold deposit if a) The tenant hasn't given notice to leave or b) there is damage on the property. And that the deposit remains the property of the tentant and the landlord does not have the right to hold it (threshold.ie and citizens info sites)

Now, I imagine that the only cause she'd have to keep it would be under a). But we haven't signed any lease or letting agreement at all yet. Just paid a deposit, which we recieved a reciept for.

So would it be right to say that we as we haven't actually signed anything, that we aren't her tenants yet and so don't have to give notice? Therefore she has not right to keep our deposit?

Blah. Crappy situation all round. We don't want to land her in it any more that we want to give up the house. But this is where we find ourselves all the same.

Any thoughts?

dats_right

eleven wrote: »

So would it be right to say that we as we haven't actually signed anything, that we aren't her tenants yet and so don't have to give notice?

No. Under section 5 of the Residential Tenancies Act 2004, 'a tenant' is defined as: "the person for the time being entitled to the occupation of a dwelling under a tenancy and, where the context so admits, includes a person who has ceased to be entitled to that occupation by reason of the termination of his or her tenancy". Obviously the definition of a "tenancy" is then very relevant as to who is a tenant, and a "tenancy" is defined under the same section as:"includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and, where the context so admits, includes a sub-tenancy and a tenancy or sub-tenancy that has been terminated;". It would therefore seem quite clear that you are in fact tenants.

Presuming this is in fact the case you are required to give notice. On a positive note, it would certainly seem that there is no fixed term tenancy and as a result you are probably entitled to validly terminate the tenancy on the serving the appropriate Notice of Termination i.e. <6 months= 28 days (section 66) and of course making sure that such notice is in the prescribed manner and all formalites are complied with.

eleven wrote: »

Therefore she has not right to keep our deposit?

Deposit retention is always a thorny issue. Under section 12 (1)(d) a landlord is under an obligation to "return or repay promptly any deposit paid by the tenant to the landlord on entering into the agreement for the tenancy or lease". However, this is subject to the landlord's right to retain said deposit where the tenant is in arrears with rent and/or where the tenant has casued damage to the property. The bottom line therefore is that once you are not in arrears of rent or have damaged the property you are entitled to the return of your deposit, but remember you are obliged to pay rent for the duration of the notice period, even if you are not in actual occupation of the premises.

I know this probably isn't want you want to hear, but at least by knowing the correct position you will be able to minimise any future loss. Also just because the law isn't necessarily on your side, doesn't mean you shouldn't negotiate with the landlord. For example, it would appear that you are entitled to terminate your tenancy with 28 days notice and for the whole of that period you are entitled to possession, so the landlord cannot seek to put tenants into the property during that time, which probably isn't in their interests as they will almost certainly want to put a new tenant in immediately, particularly if others were interested in taking the letting and if so it may just be a matter of the landlord phoning someone else who viewed the property, whereas in a month's time the landlord will probably have to incur the costs of placing another add, etc. If you were to now agree to the landlord immediately re-taking possession and re-letting then you may be able to negotiate the return of, if not all, at least some of your deposit back. Otherwise you should make it very clear that you intend occupying the premises/obstructing any attempts to re-let the property during the notice period as for the whole of that period you are tenants.

Best of luck

eleven

Thanks for your reply. Just fyi, we got our deposit back. Hooray!