Can't get deposit back for Propery with False lodger Agreement

mobileron

Go to land registry site and download the registered documents,it will cost you £3.00  should give you the info you need.

MiserlyMartin

macman said:

No, you need an address for service, which must by law be stated in your tenancy agreement. Was the deposit not protected?
If the LL didn't live there, then you were a tenant in an HMO, not a lodger, so can sue for non-protection.

I had a 'room rental agreement' for the just the room so deposit not protected. It stated the deposit would be returned if no damages. The LL did live there but moved out while I was there, she has another house the address of which I don't have. So no protected deposit and its not clear if they can claim they lived there or not, but it was definately set up as a lodger type arrangement. I was the only one there, though she did pop in some days to get post.

MiserlyMartin

greatcrested said:

You can sue for your deposit,plus for the penalty for not protecting it as you were a tenant, not a lodger (landlord not resident).

See

Post 3: Deposits: Payment, Protection and Return.

However you will need an address to serve the court papers. If you have no other address for the LL, use the property address.

Start with a 'Letter Before Action' giving 5 days for him to pay, then use moneyclaimonline

Thanks yes I was planning to at least take her to the small claims court, however I'm not sure I can use deposit protection legislation as it could be argued that she lived there. If so, I'm a lodger.  Part 3 of you link : "This legislation applies only to tenancies - it does not apply to 'Excluded Occupiers' (lodgers)." What do other people think? Lodger or not?

Comms69

MiserlyMartin said:

greatcrested said:

You can sue for your deposit,plus for the penalty for not protecting it as you were a tenant, not a lodger (landlord not resident).

See

Post 3: Deposits: Payment, Protection and Return.

However you will need an address to serve the court papers. If you have no other address for the LL, use the property address.

Start with a 'Letter Before Action' giving 5 days for him to pay, then use moneyclaimonline

Thanks yes I was planning to at least take her to the small claims court, however I'm not sure I can use deposit protection legislation as it could be argued that she lived there. If so, I'm a lodger.  Part 3 of you link : "This legislation applies only to tenancies - it does not apply to 'Excluded Occupiers' (lodgers)." What do other people think? Lodger or not?

You said she didnt live there? So did she or not?

greatcrested

Drip drip.

OK - she lived there when you moved in. You were a lodger. The deposit did not need protecting.

She moved out, leaving you with excusive occupation. You became a tenant. The deposit should then have been protected.

But stating how the law works is different to proving the facts. Assuming you claim the deposit penalty in court, doubtless she will claim she did not move out and you remained a lodger. Who will the court believe? That depends who is most convincing and / or produces the most evidence.

The LL may produce bank documents, driving licence, HMRC letters, nhs records etc etc all showing her address.

You will ideally need to counter this with evidence of her absence - the best would be some proof she was actually resident at 1, Somewhere Else Drive. A sworn statement from a reliable witness might also help.

macman

There is no such thing as a 'room rental agreement' in law. You are either a tenant or a lodger. If a tenant, it can be exclusive occupation, or it can be an HMO. But, from the point of view of deposit protection, it makes no difference: a tenant must have their deposit protected. As greatcrested points out, the real problem is your case will be proving that she was not resident. 
'popping in to get the post' is not living there.
In your case, you may well find that sending an LBA saying that you will be commencing an action for non-protection of your deposit in 7 days will be enough to get your deposit returned, (which was your original intention) even though such an action might fail in practice. Unlikely that your  LL knows the law.
You have nothing to lose but the price of a stamp.

jonnygee2

But stating how the law works is different to proving the facts. Assuming you claim the deposit penalty in court, doubtless she will claim she did not move out and you remained a lodger. Who will the court believe? That depends who is most convincing and / or produces the most evidence.

I think in the end, all this might not be worthwhile.

Whatever the tenancy type, the deposit needs to be repaid. I think I'd just send a letter before action and then send a money claim for the missing £500.

macman

My point was that the threat of claiming non-protection (at 3x the deposit value) gives the OP considerably more ammunition.

MiserlyMartin

macman said:

There is no such thing as a 'room rental agreement' in law. You are either a tenant or a lodger. If a tenant, it can be exclusive occupation, or it can be an HMO. But, from the point of view of deposit protection, it makes no difference: a tenant must have their deposit protected. As greatcrested points out, the real problem is your case will be proving that she was not resident. 
'popping in to get the post' is not living there.
In your case, you may well find that sending an LBA saying that you will be commencing an action for non-protection of your deposit in 7 days will be enough to get your deposit returned, (which was your original intention) even though such an action might fail in practice. Unlikely that your  LL knows the law.
You have nothing to lose but the price of a stamp.

Thanks for all replies. I can't see how the action would fail as it is quite clear that the deposit was not protected and needs to be returned.

macman said:

My point was that the threat of claiming non-protection (at 3x the deposit value) gives the OP considerably more ammunition.

Yes it does indeed. It sounds like as she moved out and even though she just popped in to get the the post then despite it being a room rental agreement on paper, it was actually a tenancy in law then.

fluffyowl

Hey  csgohan4, maybe send her a pseudo nice email, questioning why she hasn't given back the deposit (because she was such a nice landlady...!!), and that there must be some mistake... but in searching for a solution, a solicitor friend of yours (!) pointed out that she is illegally renting the house as a House of Multiple Occupancy and should be paying tax on it, as it's not covered under the Rent a Room scheme. And you're not really one to cause a fuss, because it could land her in a lot of trouble...and that you  expect to here from her by date xxxx with your full deposit KIND regards etc etc

I'd also mention the fact that you will be informing Spareroom and sending letters/going round to the new occupant to inform them that they are a tenant and not a lodger and to contact the council and change the locks. Try this in a second email if the first doesn't work. 

Third email small claims court and informing HMRC.

Karma my friend, karma



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