Tenancy deposit rules

Definition and general information about deposits, including offsetting rent against deposit and statutory control on amounts.

This content applies to England

Tenancy deposit - definition

A deposit is a sum of money that a landlord (or their agent) can request at the beginning of a tenancy as security against non-payment of rent, damage to property, or removal of furniture.

For the purposes of the tenancy deposit protection schemes, a deposit is defined as money held, by the landlord or other, as security for:[1]

  • the performance of any obligations of the tenant, or

  • the discharge of any liability of the tenant arising out of the tenancy

Rent in advance is not a deposit.[2]

A rent deposit for the purposes of this page should be distinguished from a 'holding deposit' which is a sum of money paid to a landlord or letting agent to secure accommodation prior to signing a tenancy agreement.

Tenancy deposit protection rules

With effect from 6 April 2007, a deposit paid in relation to an assured shorthold tenancy must be protected in a government-approved scheme.[3]

A tenancy deposit taken from an assured shorthold tenant can only consist of money.[4]

In a non-binding case, a 'membership fee' that was to be returned at the end of the occupation was found to satisfy the requirement of a deposit. Despite the occupancy agreement having been labelled as a 'licence', the occupier was found to be an assured shorthold tenant, because she had exclusive possession of her room and paid rent in the form of a regular 'contribution fee' to a non-resident landlord.[5]

The tenancy deposit protection rules have been amended several times since they were first introduced in 2007. See Time limits for compliance for related details.

Offsetting rent against deposit

A tenant cannot lawfully fail to pay the last period of rent in lieu of the return of a deposit of the same amount. This is because the tenant remains liable for the rent for that period and a landlord would be able to take court action to recover the money as rent arrears. The tenant would then have to counterclaim for the return of the deposit. However, in practice, many tenants withhold rent for the final period, especially if they know that their landlord has unreasonably withheld the deposits of previous tenants.

Statutory control on amount charged as deposit

For certain categories of occupier there is legislation governing the amount that can be charged as a tenancy deposit.

Tenant Fees Act protection

With effect from 1 June 2019, private landlords and letting agents cannot require the payment of a tenancy deposit that is greater than:[6]

  • five weeks’ rent, where the total annual rent is less than £50,000

  • six weeks’ rent, where the total annual rent is £50,000 or more

where the tenancy deposit is required in connection with:[7]

  • an assured shorthold tenancy

  • a licence to occupy housing (including to a lodger)

  • a tenancy granted to a student by a specified educational institution

Any amount over and above the capped amount is a prohibited payment.

Where there is a joint tenancy, the cap relates to the total weekly rent for the tenancy. A landlord cannot ask for a tenancy deposit equivalent to five or six weeks’ rent from each of the joint tenants [8]

The cap does not apply where :

  • the tenant/licensee signed the tenancy/licence agreement (or agreed to it) before 1 June 2019

  • a statutory periodic tenancy arises during the year after 1 June 2019

In these situations, a landlord/agent the cap on the amount of a tenancy deposit does not apply until 1 June 2020.

For further information about the Tenant Fees Act 2019 and the sanctions against a landlord or agent who has charged a prohibited payment see Rules for tenant fees

Other restrictions

Tenants protected by Rent Act 1977: the Rent Act 1977 prohibits deposits unless they are reasonable in relation to the potential liability in respect of which it is paid and do not exceed one-sixth of the annual rent[9]

Tenants protected by Housing Act 1988: a deposit that is greater than one-sixth of the annual rent is a premium.[10] If a premium is paid on a contractual periodic tenancy, there will be no implied term requiring the tenant to obtain the landlord's consent before assigning the tenancy or subletting.

Return of deposits

At the end of a tenancy the landlord/agent should return the deposit to the tenant less any allowable deductions (for example to cover unpaid rent or damage).

Where a deposit is not covered by tenancy deposit protection rules, for example a deposit paid on a tenancy other than an assured shorthold tenancy, and there is an unresolved dispute about the return of the deposit, the only recourse for the tenant is to issue a money claim against the landlord through the County Court Money Claims Centre using Court form N1

Help with housing costs

People having difficulties paying a deposit to secure rented accommodation may be able to get help with housing costs.

Last updated: 17 March 2021

Footnotes

  • [1]

    s.212(8) Housing Act 2004.

  • [2]

    Johnson and others v Old [2013] EWCA Civ 415.

  • [3]

    ss 212-215C Housing Act 2004, as amended.

  • [4]

    s.213(7) Housing Act 2004, as amended by s.184 Localism Act 2011.

  • [5]

    Del Rio Sanchez v Simple Properties Management Limited. Central London County Court sitting at Oxford Combined Court. 24 February 2020; reported on the Nearly Legal blog on 1 March 2020.

  • [6]

    para 2, Sch.1 Tenant Fees Act 2019.

  • [7]

    ss.1, 2, 3 and 28 Tenant Fees Act 2019.

  • [8]

    p.39, Tenant Fees Act 2019: guidance for tenants, MHCLG, April 2019.

  • [9]

    s.128 Rent Act 1977.

  • [10]

    s.15(4) Housing Act 1988.