Late Rent Payment Fees

Landlord Knocking on door

Like many of you (I’m sure), during my spare time I like to kick back, relax and bury my head in an assortment of Tenancy Agreements for some light reading. May I add, the ladies love it. It’s like walking around a park with a newborn.

I haven’t read many tenancy agreements which enforce “late rent payment fees”, but I know they’re common, especially in contracts used by Letting Agents. The basic concept is, if a tenant is late on paying their rent, they’re obligated to pay a penalty fee.

Believe me, there’s always someone trying to squeeze a penny out from somewhere. Speaking of which, are people actually getting away with selling Stars?

I’ve personally NEVER included late payment “penalty” terms in any of my contracts, but here’s what was written in the one I was looking over:

LATE RENT PAYMENT

It is the responsibility of the Tenant to ensure their rent is cleared through [LETTING AGENT] account by the rent due date.

[LETTING AGENT] are not obligated to remind the Tenant(s) when their rent is due.

[LETTING AGENT] operate a strict policy with regards to late payments of rent. [LETTING AGENT] reserve the right to serve any notices against the Tenant(s) in accordance with the terms of the Tenancy Agreement.

Interest of 6% above the current Bank of England base rate will be levied for each day the rent is late.

[LETTING AGENT] operates a struct ‘Late Rent Procedure’ which involves levying the following administration charges on those Tenant(s) who pay rent late. The Tenancy Agreement also includes a provision allowing Landlord to charge interest on arrears.

If rent is not paid even days after the rent due date a first rent reminder will be sent and a charge levied of £35.

If rent is not paid fourteen days after the rent due date a second rent reminder will be sent and a charge levied of £50. Failure to pay the outstanding amount will result in the service of HOUSING ACT 1988 Section 8 (as amended by Section 151 of the Housing Act 1996); Notice of Seeking Possession of a Property Let on an Assured Tenancy and £125 will be levied for the preparation of this document.

If rent is not paid twenty one days after the rent due date a third rent reminder will be sent and a charge levied of £75.

Further reminders may follow thereafter and will be charged at the rate of £75.00.

Rental payments made by cheque which fail to clear within three days of the rent due date will be deemed to be late payments and an administration charge of £35 will be levied.

Holy shit, right? Those fees seem craaaazy excessive to me, but more glaringly, the whole idea seems pointless (which I’ll explain shortly).

If you want to enforce late payment fees onto tenants, throw something like that into your Tenancy Agreement, that will do the trick. But I would definitely seek legal advise before doing so, because I’m not even sure how enforceable half of that crap is. Having said that, those terms were taken from a Tenancy Agreement that is used by quite a large and reputable letting agent, so you’d like to think it’s all kosher. Alas, I found one of the terms quite misleading:

If rent is not paid fourteen days after the rent due date a second rent reminder will be sent and a charge levied of £50. Failure to pay the outstanding amount will result in the service of HOUSING ACT 1988 Section 8 (as amended by Section 151 of the Housing Act 1996); Notice of Seeking Possession of a Property Let on an Assured Tenancy and £125 will be levied for the preparation of this document.

A Section 8 can indeed be served if a tenant falls in arrears, but they need to be 2 months in arrears for a mandatory repossession, not fourteen days.

Ground 8: the tenant owes at least two months in rent (monthly tenancies) both on service of notice and at the time of the court hearing. Where rent is payable weekly, quarterly or annually ground 8 requires that there are arrears of 8 weeks, 3 months and 6 months respectively.

It states that failure to pay the outstanding amount will result in the service of a Section 8. Are they implying they will serve the section 8 if the tenant is fourteen days late? That’s how I interpreted it, and if that’s the case, the notice is essentially uncomfortable toilet paper.

Scare monger tactics. That’s all that is.

What’s even more amusing is the term also states that the tenant is liable to pay £125 for the preparation of the Section 8 document. I’d like to know exactly how many people have paid that fee. So if the notice is served immediately after fourteen days of being in arrears, the tenant has to pay the preparation fee, even though the notice may not be enforceable. Brilliant.

On a side note, it literally takes 5mins to complete the notice, so the time invested in “preparation” is most certainly limited, and doesn’t warrant a fee of 125 nuggets.

Why I find late payment fees pointless

  • If a tenant is facing financial difficulties and they can’t pay rent, they sure as hell won’t be able to pay the late payment fees. It’s already tough enough for landlords to recover lost rent, let alone the extra bullshit fees being added on.
  • Late payment fees will most likely sour the relationship between tenant and landlord/letting agent; a hostile tenant is unlikely to be accommodating. The primary aim should be to get the rent, and the best way to do that is to make it easy for the tenant, not more difficult.

    I have a tenant that is annoying beyond belief. Without fail, he pays rent late every bloody month. It drives me insane because I have to chase him continuously, even though the dumbarse knows exactly when rent is due. I’ve blogged about the prick a few times in the past, and while i’d love to punch him in the face with late payment fees, I don’t, because he always ends up paying… eventually. That’s the main thing.

    Maintaining a healthy relationship is often key to the success of a good landlord/tenant experience.

  • Late payment fees seem greedy and counter-intuitive to me. They’re not solving the actual problem, they’re adding to the problem.
  • It happens. Tenants are going to pay late at some time or another. It might be a one off, it might happen a few times, but as long as they’re paying, why rock the boat?

So, what are your thoughts, chaps?

Tenants: have you ever been charged with a late payment fee? If so, how did you feel about it? Moreover, are you currently tied into a tenancy that enforces late fee penalties?

Landlords / Agents: what do you think about late rent fees? Do you have late rent terms in your tenancy agreement(s)?

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36 Comments- Join The Conversation...

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Benji 5th October, 2012 @ 17:35

They will not be using (mandatory) section 8 ground 8.
They will be using (discretionary) section 8 grounds 10 and/or 11.
Have you read your post you linked to?

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fredo 5th October, 2012 @ 21:08

The clause is not there to help with landlord-tenant relations. The fee is paid to the agent. Maybe they pass on the 6% interest to the landlord when the money comes through, but I wouldn't bet on it.

Like the fees associated with renewal, it's not what it costs, it's what they can get away with. The way I read it after 21 days you could have incurred a charge of £285 plus interest of 6%+. Most people would be a lot better off with a pay day loan (even though they're pretty bad), especially if they can get most of the rent due.

These penalty clauses are fairly similar to the excessive bank charges a lot of people were claiming back a few years ago. The bank charges were far in excess of costs and therefore became classed as penalties which the banks did not have the right to apply. Just because it's in a contract doesn't mean it can be enforced, but for most tenants in difficulties there will be more pressing needs.

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The Landlord Avatar
The Landlord 5th October, 2012 @ 21:33

@Benji
Ground 10, can't imagine a court would ever award the agent/landlord anything based on 14 days of arrears. More importantly, it will most likely take months before the case goes to court. If the tenant pays before the court hearing, the ground becomes void.

Ground 11 says that the tenant must be "persistently" behind on rent. The clause in the TA doesn't mention that at all.

As said, sounds like scare monger tactics.

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Barbara 6th October, 2012 @ 07:14

The penalty clauses would be subject to the Unfair Contract Terms Act 1977 and probably unenforceable if it went to court.

Re your late paying tenant, I would write and remind him of the due date and the fact that you constantly have to chase him and warn him that if it continues you will be terminating the tenancy as soon as you are able to do so. Assuming you don't mind the hassle of getting a new tenant in. Why can't he set up a direct debit to come out every month?

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Benji 6th October, 2012 @ 20:21

Landlord,

Some minor points, but-

"Ground 10, can't imagine a court would ever award the agent/landlord anything based on 14 days of arrears."

Neither can I.

"it will most likely take months before the case goes to court"

If that is the case, then I can imagine a court awarding something following months of arrears (even under ground 10).

"If the tenant pays before the court hearing"

Then your dodgy letting agent will be laughing, as the first thing they will offset any payment against will be their highly dubious charges.

All The Best, Benji.

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The Landlord Avatar
The Landlord 7th October, 2012 @ 18:23

I added the words "mandatory repossession" for clarity. I didn't correct anything.

You're right, minor points. Not even worth arguing about. Doubt those charges are even entirely enforceable, so offsetting could be disputed.

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Benji 7th October, 2012 @ 20:46

No arguments from me mate, only friendly banter!

Cheers for the "clarifications" ;))

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max 8th October, 2012 @ 08:39

Only the courts can impose a penalty. Charging extortionate interest or excessive fees for sending a letter is clearly an unfair contract term and is in the nature of penalty

When I used to adjudicate deposit disputes whatever the TA said I awarded what I considered a reasonable charge for sending a chasing letter which depending on circumstances was between £15 and £25

In my experience when a tenant has not paid the best plan is to pick up the telephone and phone the tenant on the day rent is due to find out what the problem is and if there is a problem see if a solution can be worked out

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Cardifflandlord 8th October, 2012 @ 15:18

I reserve the right to charge a late payment fee of £15.00 which is there to cover my time/fuel/car parking etc of having to go back to the bank to deposit the late rent. I have been inconvenienced after all through no fault of my own. Additionally I reserve the right to charge interest on the debt of 1% per day over base but since the percentage is a yearly figure working it out can be an issue so I don't usually bother.

As yet not had the need to actually charge as just the mention of a late payment fee either does the trick or at least gets the tenants talking to me. As long as I know what is going on I will allow a few days grace. If the rent is over 12 days due that is when I will charge. Not happened as yet (lucky me).

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Cardifflandlord 8th October, 2012 @ 15:23

Max,

I thought that courts could only impose a fine? I know a penalty charge notice can be issued by say a dodgy car parking company but this is unenforceable due to various acts of contract law/statute, unless you actually admit to breaching the terms of the contract. They have to prove it was actually YOU breaking the terms of say the parking terms and conditions, and they have no right (at present) to force disclosure of the person who did (unlike say a speeding ticket which requires the keeper to provide that info).

I am assuming of course that fines and penalties are different in law?

Not having a go, just interested to find out if there is a difference? Sorry if it's a bit off topic.

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Jeremy 11th October, 2012 @ 22:17

This article reminds me of your comments about making sure landlords check out fees lettings agents (if they use agents) charge prospective tenants. And how fees the agents charge tenants but don't advertise to the landlord can make your property plummet in attractiveness. The tenant clears off to a better agent without all the up-front fees and the landlord suffers a void period.

If I knew an agent was doing anything like this I'd never use them. And I check. We can all read the words but what it actually says is something like: "Just wait until you suffer one of life's little hic-ups. Then we'll be on to you. We'll rip the notes out of your wallet you pathetic renter because we're the agent and we're all powerful. And if you think we're even going to bother to tell the landlord if the boiler breaks in winter that just shows what a naive idiot you really are".

Once the economy re-stabalises and more balance returns to the demand and supply of the rental market then odious clauses like this should disapper.

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Jan 14th October, 2012 @ 15:26

Seems counter productive to me. Just a greedy agent. Totally agree with the statement about tenants needing help etc. If they are decent I want to keep them and have frequently had to arrenge "top ups" due to late/arrears etc. Lets face it we all wantour rents paid on time, flats in perfect order etc. etc., however in the non Disneyland version we do the best we can. What is the point in beating someone who is alredy struggling, if you want them out then follow legal procedure or hope they will just leave

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ruphilyn 16th October, 2012 @ 13:49

I agree with you on that if they can't pay the rent on time for sure they can't pay the penalty fee. It should be stated in the contract that they should be given at least 15 days or 1 month to pay for the rent.

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Han1908 2nd December, 2012 @ 12:16

Hi,
My tenants are not struggling by any stretch of the imagination, they have far more disposable income than I do. I've been made redundant twice this year and as a result, I'm barely keeping my head above water.
Now my tenants are late paying EVERY month. It's often only by a few days but when my mortgage then comes out during those few days and I end up in my overdraft, why the hell shouldn't I charge them? Up to now I haven't done because I want to keep a good relationship etc, but now they're just taking the piss and the money is being paid later and later.
I've done them so many favours in their rental agreement, such as agreeing to fortnightly payments as that's when they get paid, but am now regretting it.
Anyone know where I stand regarding passing charges on to them if I can't pay my mortgage directly as a result of them not paying rent?!?!

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kellywalker 21st February, 2013 @ 00:44

As i rent my home and take care of the property which is need of many repairs infact the propety should of been not boddged up before i move in... however it is my home now till i find another.... the rent should be paid by the tennent at the end of each month as pay as you go.... why they want in advance i dont know as they dont check they propetys for repairs at all and that in itself wrong.... we should pay as you go at the end of the month or weekly not these demands for renting they propertys that are old and cold the law should be changed for the tennent and the councils should check more on the state and rents that are been cahrged for private accomodations pritvate landlords can seem to think they can do and charge what they wish....

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richard 28th February, 2013 @ 18:52

I've been in my new home about 7months now and have only
Been late with the rent once but it was a about a month late over Xmas but I paid it in full in Jan over £1000 in one go ..I've just been paid wrong and my employer has said it will be 15 days until my wage is amended .. do I just leave it and pay it on the 15th day or contact them explaining the problem
And can thay evict me for the rent being late ?.

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Karen 25th August, 2013 @ 12:52

My Landlady wants myself and my foster sister to her pay her bank charge of £35 for which she is saying is incurring daily interest I do not believe this and I refuse to pay it.
My rent is currently late due to council for which I am unable to do anything till Tuesday.
Can my Landlady do this?

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max 25th August, 2013 @ 17:58

Only the courts can award a penalty of fine

If it it is not in the TA the tenant is not obligated

Even if in the TA it is almost certainly an unfair contract term and no adjudicator for a deposit service or court would award it
m

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Nat 10th September, 2013 @ 13:12

Hey, I moved into my property last month. I was away on the date rent was due (a Sunday) and unable to pay. I emailed the letting agent to let them know the situation and asked whether I could do it over the phone but also to let them know a housemate would try to pay for me. I received no response from the letting agent and the housemate said they paid. I thought all was fine. 10 days later I receive an email from the agent saying my rent is late, incurring a £35 admin fee plus £3.50 a day for the lateness (the £3.50 was in the agreement)
Is charging £35 for an email legal?!

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max 10th September, 2013 @ 14:10

The £3.50 a day late fee is not unreasonable especially as it is in the TA

THe admin fee is in my view a quasi fine and is unenforceable especially as the compensation of £3.50 per day is specified I would have said that the admin fee was reasonable had there not been compensation in the TA for late payment.

It is each tenants responsibility to ensure the full rent is paid on time

Pay by Standing Order

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David Palmer 11th October, 2013 @ 12:49

Late Payment fees are completely unenforceable even if they are in the Tenancy Agreement because all Tenancy Agreements are subject to the various revisions of the Housing act.

A good friend of mine is a Judge and he told me he would look very dimly on a Landord trying to claim for these, especially if the rent had been paid in due course. It would be wasting the Courts time and he said he may even award the Tenant costs.

He said that he would not even entertain a claim for Late Payment Fees unless there had been a grace period of at least 14 days, that the Tenant had been a persistant late payer (at least 6 late payments) and even then only as part of an eviction with at least 3 months of unpaid rent.

I should point out that he as pretty harsh as a Judge, he does not fall for sob stories and goes strictly by the law.

It can be frustrating to have your mortgage dependent on the finances of a tenant but it is all part of the property game, if you really can't afford a buffer of at least one month's rent then you should probably sell up.

As has been said, If they can't pay the rent on time for sure they can't pay the penalty fee.

You also make the relationship sour, when you really want a tenant to look after your property.

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Sue 30th July, 2014 @ 17:07

We were late by 18 days paying our rent and have been charged £1000. Is this allowed or should we seek legal help claimimg this back?

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David 1st August, 2014 @ 07:38

@Sue

No Sue this is NOT allowed

Any penalty charges have to be fair and based on actual costs, typically a charge of an interest charge for 18 days at a reasonable rate. Typically 4% above the Bank of England base rate or they might try to use the Libor rate.

So if your rent was £1000, the annual interest at 4.5% would be £45 divide that by 365 days gives you 0.123p a day, multiply that by 18 days and you get £2.22. So he could reasonably charge you £2.22. Now if he could show an actual penalty from his mortgage company for your specific property, dated for the period in question, he could pass that on at cost. You are within your rights to request evidence of any such charge that he wishes to pass on. You should verify such evidence with the mortgage provider.

Note that even if your tenancy has penalty clauses they are not only unenforceable but they are often a sign of a badly constructed tenancy agreement.

The office of Fair trading has produced guidance on this and it is what Judges use to determine what is fair and reasonable.

These include all the tricks that bad landlords use, including penalties disguised as core terms. If such a term has the effect of an unfair penalty, the form of the term is not relevant and it will be regarded as a penalty clause.

If you wish to list how the charges are made up I can tell you exactly why they are illegal.

Generally any fixed amount penalty (e.g. £20 a day) will get thrown out. A landlord has to show ACTUAL costs, they can't make these up, they have to show evidence to the Court. Note if they start ANY kind of harassment, document it, report it to your local council and send them a letter stating that you regard their behaviour as harassment and any further behaviour of this kind will be reported to the authorities.

This may include turning up without an agreed appointment, trying to make appointments at inconvenient hours. In such circumstances you can refuse to deal with them directly because you are in fear and insist that they use a 3rd party. Any threat to evict you, any changing of the locks, any entry to the property when you are not there are all illegal and can get them huge penalties.

Even without this guidance UK common law which overides any contract says that it is unfair to impose excessive sanctions for a breach of contract. A term that requires the tenant to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the landlord is likely to be void as a penalty under common law.

As I said, list a breakdown of the charges and I will give you specific terms which you can use to reject them.

Hope this helps.

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Sue 3rd August, 2014 @ 13:48

Hi David,

Thanks for your reply. Our monthly rent is £1750 and in the agreement it says that we will be charged 3% above the LIBOR rate DAILY until the arrears have been paid. As I said previously, we were 18 days late paying that months rent, so they have charged us £1041.25 on top of the months rent I need to know if this is legal and how to approach the lettings agent. Any guidance would be appreciated.
Kind regards
Sue

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David 4th August, 2014 @ 08:38

@Sue

That sound excessive, for now I would simply send them a message

"Dear Sir/Madam

Further to your recent demand for charges for late payment of rent can you please clarify your calculations and how you came up with the total of £1024.25

Many thanks

Sue"

Do not get into an argument with them at this stage, just ask for the calculations.

The problem with quoting Libor is that there are now many Libor rates.

Reversing what they charged, we start with £1,041.25, divide that by 18 days and get £57.85 divide that but the rent of £1750 and you get 3.31% deduct the "3% above" rate you get 0.30556% as the Libor rate they used.

So they seem to have forgotten to divide the rate by 365 days or they have charge you 365 times the appropriate fee!

Look at the contract term, it may be constructed as an unfair contract term, the OFT guidance in this area is

"To pay interest at the rate of x per centum per annum above the base minimum lending rate of [name] Bank on any rent or other money lawfully due which is in arrears for more than fourteen days after the day on which it became due."

They are using LIBOR which is fine, but they cannot charge you an ANNUAL rate DAILY, they would be in trouble with so many financial regulation agencies.

If it was the agent that applied these charges they may have made a mistake because, let's face it, the staff they employ are not exactly known for their competency.

They should only have added the interest if they have added any fixed charges they are in trouble, they can only add real costs incurred.

For you to know, these are the calculations that SHOULD have been used, based on

LIBOR (using the rate calculated above) at 0.30556% so Interest rate 3.31%

£1750 x 3.31% = £57.85 which is a years interest, divide that by 365 days and you get £0.16 multiply that by 18 days and you get £2.8527 (£2.86)

For now you assume it is a mistake, you ask they for the numbers.

Once you have the numbers you inform them of the error and ask them for a refund of the difference plus of course your REAL costs, so your interest, as you were charged by wherever you got the money from.

If they dispute it you start of by reporting the agency to any associations they are members of e.g. ARLA

Next you send them a demand of the rebate and tell them this is a final request and you will be issuing legal proceedings in the small claims court within 14 days of the date of this letter for the excess fee AND your legal costs.

I would also report the agency to trading standards in the area where they are based.

Feel free to paste the exact wording of the term and I will tell you if it is legal.

Do let us know how you get on.

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marcus 30th October, 2014 @ 00:01

I have never, in my twenty years of living in rented accommodation (much to my annoyance despite it's necessity) come across a tenancy agreement with clause to the effect that I should be charged any fee for late payment of rent. It's a simple matter of common courtesy to ensure that rent is paid on time or as near as practically possible if it cannot be paid on time (e.g. banks can be picky about paying money out during the weekend so rent may not get paid until Monday, or might come out earlier on the Friday - even so, never been charged any fees for that either!).
I'd love to know who uses these clauses so I can avoid them ENTIRELY.
I have paid my rent regularly as clockwork and always (with one exception of a really bad estate agent in the South) made sure that if there is anything out of the ordinary likely to occur, either the estate agent knows or the landlord/landlady knows in advance - and thankfully they've been pretty good about it by and large. It's just the slummers and the lazy arseholes that can't be bothered to stick to their side of the agreements that annoy the crap out of me - and even with those, I still never saw any clause that indicated charges being made for late payment of rent.

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David 30th October, 2014 @ 11:18

I HAVE had such clauses and successfully argued that they are an unfair contract term as OFT356 guidance 2006 states. The equivalent interest for a few days was 15p.

In addition to this Landlords need to recognise that rent is not officially overdue when it has not been paid by the due date.

You have only to look at the forums for this great site to see the nutty ideas of some landlords of what they will put into their contracts.

The fact is that a tenant has to sign the tenancy agreement in front of them if they want to secure the roof over their head.

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Maija Pykett 5th March, 2015 @ 16:04

We have just incurred a £35 late payment fee. We pay our rent by direct debit on the first of every month and have never ever been late. This month the 1st fell on a Sunday. And guess what? Late payment fee. Even after we pointed out we have never been late. The agent incurred no inconvenience, no admin fees, they didn't have to chase us. We just received a text on Monday 2nd (the same day the rent ended up in their account) saying we were being penalised to the tune of £35. Our whole tennancy has been a disaster and as tenants we have felt powerless. We now await the joy of fighting over our deposit when we leave the house in a better condition than we found it. Never again!

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David 5th March, 2015 @ 17:06

@Maija

Did you read my post above?

Download OFT356 from http://bit.ly/356terms

Search for penalty, page 21 (on page 25) at the bottom shows that it is an unfair contract term.

Group 5: Financial penalties
– paragraph 1(e) of Schedule 2
3.44 Schedule 2, paragraph 1,
states that terms may be
unfair if they have the
object or effect of:

(e) requiring any consumer who fails to fulfil his disproportionately high sum in compensation.

3.45 It is unfair to impose excessive sanctions for a breach of contract. A term that requires the tenant to pay more
in compensation for a breach than a reasonable pre-estimate of the loss caused to the landlord is likely to be void as a penalty under common law. Other types of excessive sanction are considered in Chapt
er 4, Group 18(c).

3.46
We regard a requirement to pay unreasonable interest on arrears of rent, at a rate substantially above the clearing banks' base rates, as an unfair penalty. We regard the imposition of a fixed daily or monthly charge for overdue rent, and regardless of the amount due or the surrounding circumstances, as being penal rather than compensatory in nature, and unfair. Tenants would have to pay more than the cost of making up the deficit caused by their default.

So if your rent is £1000, then they might reasonably charge for loss of interest at say 4% above base rate so £1000 x 5.5% = £55 / 365 days = 0.15p per day.

Inform the agent that you signed the contract under duress and reject their unlawful penalty.

If they have a direct debit tell your bank to pull it back under the DD guarantee for unauthorised payments.

Refer them to your local trading standards and mention the terms above of OFT356 (there are others in OFT356 too).

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jamesE 15th April, 2015 @ 19:36

Well my lot i rent has a $35 dollar late charge after 7 days then they charge $10 a day after that. Got stuck between paychecks and was 8 days over due ended up paying $250 for rent and $115 with late charge and their little $10 a day crap so=$365 bucks left me with $70 to run 70 miles a day both ways back and forth to work. Is their any protection against robbing ppl landlords can be assholes.

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Marzena 19th January, 2017 @ 19:41

Hello,

I have terrible situation with letting agency. I signed a 1 year contract with them for the 2 bed house. Contract was ending in November so I informed them that I won't prolong it and I am moving out in January next year. In December I paid normally the rent but for Jan I asked them if I may use my deposit which was 1683pounds) for last payment of 1275. They have never replied to me that it's against our previous contract or that they will charge me late rent fee. After 2 weeks of moving out when I asked for my deposit back they have sent me invoice with late fee of 1580 pounds. So according to them I still have to pay them money. Is that legal? Through all 2 months they didn't tell me that they are going to charge me according to our previous contract they were there some fees but I thought it was ended in November. For whole year have never delay single day with them. They didn't send me any letter nothing till now. What should I do? Any advices? I am single mother and I can't afford paying 1500 just like that for nothing. I don't feel that it's fair.

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David 19th January, 2017 @ 22:23

@Marzena

First off do not worry, they are trying it on or incompetent or both.

So there are several things here:

1. Was your deposit protected at the DPS, TDS or MyDeposits within 30 days of you giving them the deposit?

2. Were you given the Prescribed Information (not just a copy of deposit being protected but a separate document, again within 30 days?

3. A landlord or their agent is not allowed to use your deposit as a last month's rent, it is against the law. However, they should have at least communicated that to you, along with a note saying if you did not pay you would incur late payment charges.

4. The agent is trying it on, these sound like a breach of OFT356 unfair contract terms. A friend of mind deals with these sorts of cases you can email them at legal recoveries @ gmx.com (delete the spaces) , send them a scan of your agreements, you could also contact Shelter or your local Citizens Advice Bureau.

If they did not protect your deposit in time or properly you may be entitled to 3x the rent as a sanction.

The way you have laid out events makes it difficult to give advice because I really need a timeline of exact dates.

Date Contract started
Date Contract ended
Date you gave notice you were not going to extend the lease
Date you moved out (did you sign anything - was a contact from agent there)

You will have signed a contract when you started the tenancy and it wil have some term regarding the late payment fees, however, just because they put it in there does not make it legal.

The £1275 and £1683 do not add up, how much was your monthly rent, if it was £1275 I would expect 4 or 6 weeks deposit.

They are entitled to charge their actual losses but they would be pennies with the current base rate.

In the first instance I would email them a simple email and send a copy by recorded delivery

"Dear Sir/Madam

I have received your Invoice Number XXXX dated January X 2017.

I am writing to inform you that I dispute this invoice and am I am requesting you immediately issue me with a credit note to offset this invoice.

If you fail to do this immediately I will forced to instruct Solicitors to prepare legal action against you and will seek my costs. If I do not here from you within 3 days to confirm you will be crediting the invoice I will be

I have never agreed to such fees and they are in breach of unfair contract terms legislation and Office of Fair Trading Guidance (OFT356). I wrote to you terminating my tenancy and requesting to offset any outstanding rent from the deposit.

I look forward to receiving your credit note, no later than 7 days from the date of this letter.

Yours faithfully

M Tenant"

If they encourage you to contact some 3rd party arbiter DO NOT DO IT!

I hope this helps.

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Marzena 19th January, 2017 @ 22:48

Hello,

Thanks for quick reply.
That was really helpful. I want to answer your questions.
1. Yes I have deposit certificate my deposit.co.uk
2. I have just deposit certificate with me.
3. Yeah I email them about it before Christmas 9.12.2016. I ask if it's possible to use deposit for last payment they didn't reply so I assumed is fine.
Start agreement 11.11.2015
End agreement 11.11.2016
Notice of moving out 01.11.2016 states for 11.01.2017
moving out 10.01.2017
Payment for last month should be done 12.12.2016 (9th I asked for taking it from deposit)
My deposit sorry was 1863 pounds
Rent 1275
I signed some moving out inspection inventory note or something. Still when I saw the agent he didn't tell me anything about charges for late payment.
If you would like to know anything else let me know.

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Guest Avatar
David 20th January, 2017 @ 00:51

Hi @Marzena

OK you have made some mistakes in but so have they.

Now you say you have the deposit certificate, when was the deposit protected, was it by 11th December 2015?

Was the deposit returned to you in full or part, if so when and how much? You said in your original message that they sent the late payment invoice when you requested the deposit back (surely you means the remaining part of the deposit), so I am assuming nothing paid back or returned.

By Law, the deposit is protected with an official authorised deposit holder, there are only 3, DPS, TDS or MyDeposits, which was it?

If the deposit was given to them (a custodial scheme) they contact you when a tenancy is expiring to ask you what you want done with the deposit. Looking at the deposit certificate you have does it say whether it was a Custodial or Insurance scheme.

You see this is what the PI is all about, it is supposed to tell you how to contact the scheme administrator, how to get the deposit back etc.

The numbers still seem a bit strange, £1275 x 12 / 52 is £294.23 a week, I would expect the deposit to be six weeks at around £1765, so it looks as if there may be £100 extra or there is a charge there that is not part of the deposit. What is the amount on the deposit certificate?

Did they provide you with a separate document (it may be with the tenancy agreement) telling you all the prescribed information (see end of this message)? They needed to do this by 11th December 2015, this is important as it gives you some power to threaten them with. The sanction could be worth £5589 if they did not do the paperwork in accordance with the law. I would expect them to have given you both docs and to have got you to sign copies (if they were efficient).

Was the message on 9/12/2016 the first time you gave notice of your intention to leave?

Was that your only communication with the agent?

How were the exit arrangements made, how did they know to come do the inventory?

I ask this because generally in life to ass-u-me makes an an ass out of you and me, so you always need to confirm, follow up and check. Now if you said you were moving out on the 10th Jan 2017 and there were no other comms, it kinda proves they got the message. However, if for some reason they did not get the message then they could not be expected to respond to it.

However, if you were late in paying rent one would expect them to send you demands, reminders, to email, text and call.

For your part you should not rely on email; recorded delivery letters are critical for anything relating to legal matters, ending a contract which you signed is a legal matter.

So legally there are a few things you should know.

B1. Your original Assured Shorthold Tenancy (AST) ended on 11.11.2016 at which point a new Statutory Agreement was created by law, it is called a Statutory Periodic Tenancy (SPT), it means the tenancy continues under the same terms as before, but runs from month to month. With an SPT the tenant needs to give one month's notice the Landlord needs to give 2 months (via a section 21 agreement) to end the tenancy.

B2. Your tenancy was covered by the Deregulation Act which fully came into force in October 2015. Prior to that they had to re-protect your deposit for the SPT, within 30 days of the new tenancy and issue you with new PI. Under the deregulation act the original can stand IF (and it is a BIG IF), the deposit details remain the same, i.e. all the details remain the same. However, they also have to give you a copy of the Government document “How to rent” at the begining and any new revisions of the “How to rent” document (when it goes SPT) that have been issued since the original. I know there have been two revisions, so you should have been issued within 30 days of it flipping to SPT. This is a legal requirement of deposit protection.

So they may be in breach not only of the original Deposit requirements for the AST but also the SPT, this potentially could mean a big payout by the Landlord. Usually these things are negotiated by people like my friend, but the most important thing is they give you leverage.

What is common with Agents is for them to NOT use the custodial scheme but to use an Insurance backed scheme. This means the Agent holds the deposit and the deposit company insures it, so you need to contact the Deposit company, ask them for details of your deposit protection, what type of scheme is it (custodial or Insurance), is it still in force, have they been advised that the AST ended on 11.11.2016 and a new SPT was created on that date, have they continued to offer protection, what details do they have for you because you have received no communications.

If there was any period where you were not protected you can make a demand on the Landlord for the sanctions, it is important to remember that it is the Landlord who is liable, he must then sue the agent for professional negligence, that is your leverage, but it needs to be done in a specific way.

I know numerous agents who put in all sorts of nonsense in their agreements and act as if they are legally in the right, but Court is a playground for the rich, so I do not expect they will pay to play. All legal agreements are subject to not being contrary to common law.

However, it is important you conduct yourself in accordance with Civil Procedure Rules and common law.

For starters by disputing the debt in a letter that you confirm they have received by recorded delivery you make it harder for them to enforce or take to Court. They may try to do this online, but if they did you would be sent Court documents and be able to file a defence and request a Court hearing. Before taking legal action they need to send you a "letter before action", again you dispute that, but with a bit more legalese. This is so that the Judge sees you have done all you can to avoid Court.

Before it gets to that you need to not only dispute the invoice but if they continue you need to send them a series of letters that follow the CPR, these are intended to avoid Court action.

What I find strange is that they were not seeking to sign a new contract or define your intentions before your email of 9.12.2016, the AST contract ended on 11.11.2016, I would have expected them to have contacted you on numerous occasions prior to that to confirm your intentions, if so, was that via email or phone or letter?

Understand that your contract was with the Landlord and NOT the agent. The agent may have had you sign additional agreements, but again they are subject to common law and potentially unfair contract terms.

Do you have a copy of the “moving out inspection inventory note or something” you signed? Did you sign any agreements with the agent on sign up.

Based on what you say I would write making a subject access request, they have to give you a copy of everything they have, both computer and paper records. You could wait for a reply to previous letter to see if they incriminate themselves, then send something like this:

“I would like to formally request a copy of all records and communications, computer and paper that you have that are related to me. Please consider this a Subject Access Request in Accordance with the Data Protection Act, I understand that you are entitled to charge a maximum of £10 for this request but that it is customary to decline to charge. Please let me know by return whether you require the £10 fee.”

So you gave them enough notice, exactly one month and a day according to the dates you provided. Seems strange that there was no reply, there had to be something for them to know to turn up. Had you used email before and had a response in a reasonable period of time?

Under Dereg act they also needed to issue you with a Energy Performance Certificate and a Gas Safety Certificate, for each tenancy, did they do this?

Based on what you have said you have quite a strong counter claim, you may even end up with a settlement figure without going to Court. If they have not done the paperwork you can bring action against the Landlord, do not get ideas that you will get the maximum, it will depend on the answers by the deposit company and other things above.

Prescribed Information

(a) the name, address, telephone number, e-mail address and any fax number of the scheme administrator(1) of the authorised tenancy deposit scheme(2) applying to the deposit;

(b)any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act(3);

(c)the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy(4) (“the tenancy”);

(d)the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;

(e)the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;

(f)the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and

(g)the following information in connection with the tenancy in respect of which the deposit has been paid—

(i)the amount of the deposit paid;

(ii)the address of the property to which the tenancy relates;

(iii)the name, address, telephone number, and any e-mail address or fax number of the landlord;

(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;

(v)the name, address, telephone number and any e-mail address or fax number of any relevant person;

(vi)the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and

(vii)confirmation (in the form of a certificate signed by the landlord) that—

(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and

(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

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Marzena 20th January, 2017 @ 09:44

Hello,
My first notice was 01.11.2016. I called them then I have sent email to confirm. 13.11 I wrote email according to my certificate which I have that I should inform them that I need my deposit back. So I informed them. Inspection date we agreed in November following mail after notice for 11.01.2017 but 05.01.2017 I changed it to 10th. They confirmed it and the agent called me 10th that he will come. He came checked the house gave me a note to sign said thank you bye bye and that's it. When I asked about deposit he said they will contact me within 2 weeks time. They haven't returned me anything plus they demand over 1000 pounds payment. If they return me deposit I may pay the rent and some fee which is reasonable. I think 1580 pounds fee itself it's just too much. They want as well 110 pounds for broken doors (which I didn't break) and the key whose broke inside the lock to garden doors. About the key I may pay that they key broke 2 days before my moving out.
What I do t like that within 2 months they haven't mentioned the rent missing they didn't send any letter about charges they didn't tell anything when I spoke with the agent so I was really shocked about this charges.

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