Tenant claiming £10k damages?

I believe that there is no problem with taking 2 or more months rent up front and then taking monthly payment from month 2 provided that you never have to refund any.

With 2 month up front, the T is in the position of having paid to the end of the tenancy if T gives valid notice of between 1 and 2 months, and so does not need to pay any more, regardless of whether or not the tenancy became periodic.

With 3 or more months' up front the situation becomes more difficult.
Either the tenancy must provide for no rent to be paid in the last 2 months of the fixed term, OR you have the situation that when the tenancy ends by T action LL will have to refund T one or more months' rent and THAT is then a deposit.

Best not to go there unless you can word your tenancy agreement precisely to cover exactly what happens if T leaves at end of fixed term or T gives valid notice in periodic tenancy to show that no money needs to be refunded. (A contractual periodic tenancy may give leeway to take more than 2 months in advance, but who wants to be a test case?)

Reply to the comment left by Michael Barnes at 21/02/2020 - 02:22
I precisely agree with Michael, the TFB has NOT prevented taking Advance Rent. The difficulty only arises where monies taken are not clearly explained in the Tenancy agreement. There are a few things to be aware about advance rent, - Take it only once, otherwise there could be an argument about the length of Rental term which may affect Section 21 Notice periods.

Reply to the comment left by Trapped Landlord at 20/02/2020 - 17:28
Good. Your solicitor has the advantage of seeing the documents and meeting you. I hope she is right but have my misgivings. Please report back on this thread when matters are resolved.

Reply to the comment left by Ian Cognito at 20/02/2020 - 17:06Hi Ian
I cannot give a general rule like that. English common law works on a case by case basis. Certainly it should be OK to take rent two monthly in advance (i.e. 6 equal payments over 12 months). Similarly, to take £1000 on 1st March and then £500 on 1st May, 1st June etc, when it is clear that the first payment covers two months' rent at £500 per month.
I do not think it is OK to always have the tenant "one month ahead with the rent" so that the landlord always has a cushion of one month. That achieves the same commercial effect as taking a deposit but thereby drives a coach and horses through the legislation. If it works, why should any landlord bother with a deposit? We could all just ask that two months' rent is paid at the start with monthly rent paid thereafter. Even supposing that at the end of the tenancy the tenant does not pay rent for the last month, I am doubtful the courts will accept this. Trapped Landlord's solicitor appears to have taken a different view though of course there may be other facts I am not aware of that inform her opinion.

Reply to the comment left by Ian Narbeth at 21/02/2020 - 10:24
I'm not so sure about that Ian, I think it depends how the tenancy agreement is drafted. As I said earlier TFB does not prevent advance Rent. ( Problems arise in how is written )

Reply to the comment left by Chris Daniel at 21/02/2020 - 10:28
Hi Chris, did you mean TFA (Tenant Fees Act 2019) or is TFB something else?

My argument does not rest on the Tenant Fees Act but on the increased advance payment looking like a disguised deposit.

To clarify, the tenancy doesn't state when the second payment is due. It merely states that 2 months are due on moving in, and the rent is payable on the 6th of the month. My solicitor agrees with me in that a a tenancy agreement ( a legally binding document) signed by the relevant parties is wholly important. I cannot see how this has the same commercial effect as a deposit, unlike a deposit, there is no mention that this cushion of rent will be withheld in the event that the property is vandalised or the rent account is in debit at the end of the tenancy. After all, we can't suddenly brand a joint of pork as beef because it looks a bit dark can we ?

Reply to the comment left by Ian Narbeth at 21/02/2020 - 10:24
Thanks for your full response, Ian.

Whilst I am a simple landlord, not a solicitor, I totally agree with your interpretation of the legislation and its intention.

Reply to the comment left by Trapped Landlord at 21/02/2020 - 10:51Trapped Landlord, on 19th February at 10.48 you wrote: "I think it may hinge on the second payment which was made on the second month. Ideally, looking back this should/ could have been made at the beginning of the 3rd month. " This implies that the next payment of rent was one month later. If you took two months' rent upfront and did not take rent for two months then the matter did not need to be discussed.
This forum exists to help landlords but without crucial information, answers are likely to miss the point. As to "there is no mention that this cushion of rent will be withheld in the event that the property is vandalised or the rent account is in debit at the end of the tenancy", I am not able to comment on matters that are not in your tenancy.
As I have said your solicitor has seen the documents and so has the advantage over me.

Reply to the comment left by Trapped Landlord at 21/02/2020 - 10:51
Hi TL. On more than one occasion, you refer to both parties having signed a legally binding contract. However, surely it can be binding (and enforceable) only if the contract is legal?

Furthermore, when a professional (landlord) enters into a contract with an amateur (tenant), I believe that a judge will look for possible entrapment.

I am certainly not suggesting for one minute that you intentionally tried to entrap your tenant into agreeing something that gives him/her less protection than is granted by the law. BUT, if the end result does just that, then my money would be on the law siding with the tenant.

Good luck and please do let us know how you get on.