Rental deposit withheld - any advice?

kaymin

A friend, A, provided written notice to a landlord of her intention to vacate an apartment. The apartment was rented to A and her friend B - both signed the lease agreement as the 'Tenants'.

The landlord maintains that, because B did not sign the notice to vacate that the notification provided by A was not valid and has not repaid the deposit as a consequence. Does the landlord have a valid legal right to do this? Has anyone received a similar explanation for having their deposit withdrawn?

A few other facts:
The lease agreement is a Fixed Term Tenancy Agreement. It does not specify that both tenants have to sign the notification. It defines A and B as the Tenants and just refers to them as the Tenants thereafter.
A provided 7 weeks written notice to the landlord despite only 1 month being required per the agreement.
The fixed term of the agreement finished without a formal agreement to continue with the agreement after this term and, in accordance with the agreement, the tenancy will continue 'as a periodic month to month under the original terms and conditions of the agreement'.

If the landlord is legally correct in what he is doing, then it could be argued that A continues to be subject to the agreement and will continue to be so until B has provided her notice to vacate to the landlord. B continues to live in the apartment and a new person has moved into the room that A vacated.

Thanks in advance!

The_Conductor

Is the entire property being let- or is it being let on a room by room basis?
If both parties are on the tenancy agreement- normally both parties sign any documentation relating to the tenancy. The elapse of the fixed term, means the tenancy would normally switch to whats known as a Part 4 tenancy- which has very specific rules associated with it- in general though it would tend to be more favourable to tenants than most tenancy agreements.

The purpose of the deposit is to make good damage over and above normal wear and tear. If a valid notice to vacate was not served- it would also pay for the period of notice (the period of notice depends entirely on how long you have been a tenant, not the period in the initial lease).

I would suggest that your friend will probably have to request the deposit back from the landlord (in writing), specifying the details of the termination of vacancy, and gently prodding re: the PRTB, should a dispute arise between the tenant and the landlord.

kaymin

smccarrick wrote: »

Is the entire property being let- or is it being let on a room by room basis?
If both parties are on the tenancy agreement- normally both parties sign any documentation relating to the tenancy. The elapse of the fixed term, means the tenancy would normally switch to whats known as a Part 4 tenancy- which has very specific rules associated with it- in general though it would tend to be more favourable to tenants than most tenancy agreements.

The purpose of the deposit is to make good damage over and above normal wear and tear. If a valid notice to vacate was not served- it would also pay for the period of notice (the period of notice depends entirely on how long you have been a tenant, not the period in the initial lease).

I would suggest that your friend will probably have to request the deposit back from the landlord (in writing), specifying the details of the termination of vacancy, and gently prodding re: the PRTB, should a dispute arise between the tenant and the landlord.

The entire property is being let. The landlord had been requested to return the deposit etc and the potential referral of the matter to the PRTB was mentioned also. I note from the Threshold website the following:

'If termination is by a tenant on behalf of multiple tenants, one signature will suffice if all of the tenants are named in the notice and the signing tenant states he/she is signing on behalf of all of the tenants.'

http://www.threshold.ie/advice/ending-a-tenancy/terminating-a-tenancy-by-a-tenant/

It doesn't mention what should be done where the tenant is not terminating the agreement on behalf of the other tenant(s). In fact A wasn't sure what B's plans were and it seems unfair that A should continue to be subject to the agreement because of any inaction by B. I'll discuss with Threshold to get their advice. Unfortunately the notice of termination A sent didn't include the following which Threshold recommend including:

'Any issue as tothe validity of this notice or the right of the tenant to serve it must bereferred to the Private Residential Tenancies Board under Part 6 of theResidential Tenancies Act 2004 within 28 days of the date of receipt of it.'

The landlord did not mention there was any issue with the notification of termination provided until after A vacated the premises. The landlord also didn't return phone calls (one month before her departure) where A sought to discuss with the landlord's agent her pending departure and whether there were any issues with the notification she provided.

Bigcheeze

Fact is the landlord had 7 weeks notice so had plenty of opportunity to query or reject the notice. The PRTB is going to see through the landlord's silly tactics.

odds_on

Bigcheeze wrote: »

Fact is the landlord had 7 weeks notice so had plenty of opportunity to query or reject the notice. The PRTB is going to see through the landlord's silly tactics.

Can you give the exact clause in the lease that allows the tenant to give notice mid term.

If tenant A vacates, where tenant A and tenant B have both signed the lease, tenant B will probably have to pay the rent for both A and B as the property was let as a unit. This is because where more than one tenant signs a lease, all are "severally and jointly liable" for the rent (and utilities etc.)

The vacating tenant may have had a better option and certainty of retaining her deposit if she had "assigned" her part of the lease, instead of just giving notice.

djimi

How is the letter worded? Does it mention that both tenants will be vacating the property or is it worded ambiguously in such a way that it might be taken that only one tenant is leaving?

Honestly if the meaning of the letter is clear and its obvious that both tenants are leaving then Id tell the landlord to cop the hell on or you will be taking a case against them with the PRTB.

djimi

odds_on wrote: »

Can you give the exact clause in the lease that allows the tenant to give notice mid term.

If tenant A vacates, where tenant A and tenant B have both signed the lease, tenant B will probably have to pay the rent for both A and B as the property was let as a unit. This is because where more than one tenant signs a lease, all are "severally and jointly liable" for the rent (and utilities etc.)

The vacating tenant may have had a better option and certainty of retaining her deposit if she had "assigned" her part of the lease, instead of just giving notice.

There is no lease; the OP said that the fixed term lease had come to an end and they were proceeding on a month by month basis.

kaymin

djimi wrote: »

How is the letter worded? Does it mention that both tenants will be vacating the property or is it worded ambiguously in such a way that it might be taken that only one tenant is leaving?

Honestly if the meaning of the letter is clear and its obvious that both tenants are leaving then Id tell the landlord to cop the hell on or you will be taking a case against them with the PRTB.

The wording was 'This is to advise you that I will be ending my tenancy at XX apartment on XXX XX, 2012. '

So it wasn't obvious that both tenants would be leaving - A didn't know what plans B had and therefore couldn't write on B's behalf. As it turns out, B has decided to remain in the apartment.

I can't really understand how the law could allow A to be subject to the agreement indefinitely solely because of a failure to act by B, by choice or neglect. Seems unreasonable yet that's the indication the authorities that be are unofficially giving us. Hopefully Threshold will have a different opinion.

djimi

When two or more people sign a lease they are jointy and equally responsible for that lease; basically as far as the landlord is concerned they are one entitly.

By the sounds of it the way the letter was worded made it sound like only one of them was moving out, meaning the other would be remaining. Had it turned out that both parties were leaving then I could understand the landlords frustration.

Milk & Honey

djimi wrote: »

When two or more people sign a lease they are jointy and equally responsible for that lease; basically as far as the landlord is concerned they are one entitly.

By the sounds of it the way the letter was worded made it sound like only one of them was moving out, meaning the other would be remaining. Had it turned out that both parties were leaving then I could understand the landlords frustration.

If one is remaining the lease continues and the landlord is under no obligation to hand back the deposit.

odds_on

djimi wrote: »

There is no lease; the OP said that the fixed term lease had come to an end and they were proceeding on a month by month basis.

The fixed term of the agreement finished without a formal agreement to continue with the agreement after this term and, in accordance with the agreement, the tenancy will continue 'as a periodic month to month under the original terms and conditions of the agreement'.

Sorry, OP, I missed those two lines in the original post.

Thanks djimi.

murphaph

Milk & Honey wrote: »

If one is remaining the lease continues and the landlord is under no obligation to hand back the deposit.

This is what I would think too. Person A needs Person B to give them half their deposit back (but if I was person B I wouldn't do that until I was leaving myself and had the deposit in my hand, minus damages etc.).

People need to think about what they are entering in to when they sign leases and so on. It's not the schoolyard anymore. The landlord sees a single tenancy here at the end of the day.

djimi

Milk & Honey wrote: »

If one is remaining the lease continues and the landlord is under no obligation to hand back the deposit.

Absolutely. I missed the part in the OP where it said the non-signing tenant was actually staying on, and assumed that both wanted to leave but only one party signed the notice letter.

kaymin

Milk & Honey wrote: »

If one is remaining the lease continues and the landlord is under no obligation to hand back the deposit.

murphaph wrote: »

This is what I would think too. Person A needs Person B to give them half their deposit back (but if I was person B I wouldn't do that until I was leaving myself and had the deposit in my hand, minus damages etc.).

People need to think about what they are entering in to when they sign leases and so on. It's not the schoolyard anymore. The landlord sees a single tenancy here at the end of the day.

djimi wrote: »

Absolutely. I missed the part in the OP where it said the non-signing tenant was actually staying on, and assumed that both wanted to leave but only one party signed the notice letter.

If you follow that logic through then A is still obliged to pay the monthly rent despite no longer living there and having provide notice of same. I'm not suggesting you're wrong, just seems non-sensible to me. In my view, if one party decides to give notice to terminate the agreement in line with the terms of the agreement (the agreement does not state both tenants have to sign the notice to terminate although perhaps that is what the law requires) then the agreement as it currently exists ceases and B, if they so wish, can enter into a new agreement with the landlord.

kaymin

Spoke with Threshold who advised that because the fixed term tenancy had ended the notice provided by A was a valid notice, however, the landlord is not obliged to return the deposit until vacant possession of the property has been returned to them. In addition, Threshold mentioned that the landlord never challenged the notice of termination provided so that fact will go against them. The landlord has allowed another tenant to occupy the property along with B and, if this new person has paid a deposit to the landlord then the landlord should repay A their deposit. The landlord is not entitled to deduct from the deposit, rent unpaid for the period between when A vacated the apartment to when the new person commenced occupation.

Kosseegan

kaymin wrote: »

If you follow that logic through then A is still obliged to pay the monthly rent despite no longer living there and having provide notice of same. I'm not suggesting you're wrong, just seems non-sensible to me. In my view, if one party decides to give notice to terminate the agreement in line with the terms of the agreement (the agreement does not state both tenants have to sign the notice to terminate although perhaps that is what the law requires) then the agreement as it currently exists ceases and B, if they so wish, can enter into a new agreement with the landlord.

Until B leaves the premises A the letting has not determined. As notice is invalid because vacant possession was not given. The landlord is entitled to the full rent during the entire period. If he accepted the notice he is entitled to damages for overholding.