Flat share: Deposit and tenancy agreement?

Sunny2

Hi All,

I hope someone can advise me. My DD has been flat sharing for the past 3 months. There are 3 other people in the flat and her rent is paid by SO directly to the landlord (who doesn’t live there). She has not received her tenancy agreement.

She also paid a deposit to the outgoing tenant. Apparently when she leaves the flat herself, the in-coming tenant has to give her their deposit. This I find very strange.

Unfortunately DD has been made redundant and requires her tenancy agreement or letter from landlord proving the amount she pays for rent etc., for the Job Centre to help her. Landlord has refused as she doesn’t want DHSS tenants. Since daughter is already in the property and has been paying her rent on time is there anything she can do to prove her rent to the DHSS and stay there? What is her legal position vis a vis the landlord?

Also should her deposit have been protected even though she is sharing a flat?

Thanks for your help on this.

orangeslimes

Sunny2 wrote: »

Hi All,


She also paid a deposit to the outgoing tenant. Apparently when she leaves the flat herself, the in-coming tenant has to give her their deposit. This I find very strange.

I don't really know about most of your questions - but paying your deposit to the outgoing tenant seems to be quite common in flatshares - I have recently done some flathunting and its what seems to be the norm in the majority of flats where you are moving in at different time from other people. I suppose it makes sense...(i'm in Scotland which may make a difference)

charliee_3

yes, the deposit thing is quite common in houseshares where people are coming and going through the year. It's not ideal as it can lead to arguments if damage has been done by long gone tenants when the last person leaves, but it is the easiest way.Will the DHSS not accept proof of her payments from her bank statement?

Jowo_2

How long has your daughter been renting the property?

Shelter are experts at housing law and are probably the best placed to confirm if the ingoing/outgoing tenant deposit swap is a legitimate loophole to the Tenancy Deposit Protection scheme or not.

For example, I wonder whether the original tenancy agreement (assuming there once was one) pre-dates the introduction of the scheme and if it was a joint tenancy agreement, the tenants have been swapped out via a deed of assignment which means the original contract is still in place. Or since the landlord has never received the deposit, there's nothing for the landlord to protect in TDS, for example.

I'm just musing on this, I don't know. Apologies, but I also don't have the standard of proof required by the benefit office to prove the tenancy exists.

I do know that landlords are often resistent to HB/LHA claimants and don't have to give a reason to evict a tenant, so long as they serve the correct notice. You haven't mentioned DD being given notice so is it the case that the landlord is hoping that she leaves of her own accord because he wont cooperate with the benefit office? This is done through the sending of a S21 notice.

But, it's my understanding that if a landlord hasn't protected the deposit when they should have, the S21 is invalid.

In the few years I've been browsing forums, I haven't encountered the scenario you've outlined about inter-tenant deposit swapping plus a failure of the landlord to supply an AST to thwart a benefits claim.

tbs624

Sunny2 wrote: »

My DD has been flat sharing for the past 3 months. There are 3 other people in the flat and her rent is paid by SO directly to the landlord (who doesn’t live there). She has not received her tenancy agreement.

Presumably the other tenants are all signed up to individual contracts, rather than to one with what is called “joint & several liability”? Your daughter is entitled at the very least to a basic statement confirming the details of her tenancy and she must request this from the LL in writing.This quite separate to an requirement to be able to produce one for an LHA claim, so don't even mention that it the letter. She should do it by good old fashioned snail mail, sent recorded delivery, & daughter keeping a copy. All she needs to say is something along the lines of " With your agreement I moved into your property at xxxxxxxx(address) on xxx (date), on a monthly rent of £xxx. I paid a deposit of xxxxx which I was asked to pass to xxxxx and have so far paid rent of £xx on xx xx xx xx (dates) I understand this to be an AST. Please will you let me have a copy of my tenancy agreement or a basic statement of the terms of my tenancy as required by law .I enclose an sae."

Sunny2 wrote: »

She also paid a deposit to the outgoing tenant. Apparently when she leaves the flat herself, the in-coming tenant has to give her their deposit. This I find very strange. [

It is, as the first couple of posters say, a practice that does seem to be used by some LLs. That however, does not make it right. As Jowo has mused, it can be part of an attempt to circumvent the Tenancy Deposit Regs, especially where it used for individual tenancies at the same property.

If a new T moved in to join others on a JS&L contract, it doesn’t make a huge difference in that it is usual for a “Lead Tenant” to be nominated to deal with the deposit return at contract expiry and, so long as each T has a deposit receipt from the LL and their name is on the contract & listed as another T on the scheme’s records they should be covered. If the LL does register deposits, & uses one of the 2 insurance-based schemes he has to pay to register each new deposit, so by trying to do things this way he hopes to avoid the fees. The other side is that under individual contracts the LL has to pay a separate fee for each one registered, even though they are at the same property.

Alternatively , he may be hoping that as the deposit is paid from one T to another he could argue that it hasn’t been “received” by him, and so the requirement to register it does not apply. The fact that a deposit is required to be paid as part of the tenancy agreement should wipe that one out.

Your daughter's tenancy deposit *should* be scheme registered ( assuming property is in E/Wales)

Sunny2 wrote: »

Unfortunately DD has been made redundant and requires her tenancy agreement or letter from landlord proving the amount she pays for rent etc., for the Job Centre to help her. Landlord has refused as she doesn’t want DHSS tenants. Since daughter is already in the property and has been paying her rent on time is there anything she can do to prove her rent to the DHSS and stay there? What is her legal position vis a vis the landlord?

Your daughter clearly has a tenancy - she has occupation, she pays rent direct to the LL, who is non-resident. In the absence of paperwork, in these circumstances, the default tenancy is an AST, with the tenant having a minimum of 6 months security of tenure. As Jowo says, if the deposit has not been scheme-registered then the LL will discover that she cannot serve a valid S21 notice at the end of that fixed term to repossess( until such time as it has been registered.)

Edit: Your daughter also may want to check with the Council whether this flat would fall under their local HMO rules. Has she seen a gas safety certificate btw?

For clarification of all of this ( because it is only a internet forum ) your daughter should make an urgent appointment to see the private sector rentals officer at the local council - may have a slightly different title (LL liaison, tenancy relations officer etc) but all council have someone. Their advice is free and they can deal direct with the L where necessary.

She could also speak to Community Legal Advice on 845 345 4 345 who can give her initial phone advice, plus put her in touch with a local advisor.

There is also a Board on MSE which offers all kinds of general redundancy advice, which she may find helpful.

tbs624

Jowo wrote: »

How long has your daughter been renting the property? ..

"My DD has been flat sharing for the past 3 months. ";)

Sunny2

Thanks so much for your replies. DD is seeing the job centre today and has taken her bank statements and a mobile phone bill showing her address.

Unfortunately she has no direct contanct with the landlord and has to work through the lead tennant. She has asked for her Tenancy agreement on several occasions .... but hasn't received one. I doubt now that the landlord will send her anything now, anyway - bearing in mind she doesnt want DHSS tenants. DD has also requested the landlord's email or phone number to contact the LL directly, but this has been refused.

I'll definately get her to contact the private sector rentals and community legal advice people as tbs has suggested.

Again many thanks for your help

Fire_Fox

The landlord doesn't have the option not to send her a tenancy agreement: it is a legal requirement irrespective of the benefits situation. It's also a legal requirement for her to be provided with an address in England (or Wales IIRC) where she can contact the landlord. She should not be dealing with anyone via e-mail or phone she must do so in writing by recorded delivery. It does sound to me a bit like the lead tenant might be subletting illegally, hence why she is getting stonewalled. She can find out who owns the flat by paying a few quid to the land registry website.