Renting: Landlord vs. Electoral Roll

NewShadow

oldbikebloke said:

NewShadow said:

If he hasn't been paying council tax the council could chase you for the amount owing - if it's in your contract it's included you'd have to pay the council then sue the landlord via small claims. 

sue the LL for what?
If it is an HMO then statute law says the LL is liable for the whole council tax. Nothing can be disputed over that, its the law.

This is incorrect - in law there are two different tests to be applied - a property may be an HMO and require a licence under the Housing Act 2004 but not be an HMO for council tax liability purposes OR a property may be an HMO for council tax purposes but not be an HMO under the Housing Act 2004.

you then say "if its in your contract"... well then, the tenant has agreed with the LL in writing to pay £x as a "contribution" to the LL in respect of the LL's CT liability.
Failure to make such a payment is a contractual dispute been the LL as plaintiff and the tenant as defendant.

The judge will read the contract, decide how clear it is, decide how fair it is, and find in the case of plaintiff since it categorically says pay £x and I'll bet the wording is clear.

We don't know if it's a HMO according to the criteria set by the local council for the purposes of council tax. 

If it isn't, and the landlord has not been paying the council tax as agreed in the contract then the council won't care if it's supposed to be included in the rent or not - the tenant would be liable to pay according to their liability and would have to chase the landlord separately to enforce the terms of the contract. 

Pine25

NewShadow said:

Re eviction:
1. Have you paid a deposit? If so, has it been protected in one of the required schemes and have you had the required information?
2. Does the property have mains gas? If so, has the landlord been carrying out the required annual gas safety checks and provided you with a copy of the certificate?  

I have paid a deposit, however our contracts are "Common Law" not AST, although the Landlord does not live here, which means (from what I've read) it doesn't have to be in a scheme.
I honestly have no idea. We don't have gas cookers, showers are electric and we have no access to the heating in the building, (there's no actual heating in my room - I have electric heaters that I plug in.) so not sure what that runs off. 

Pine25

NewShadow said:

We don't know if it's a HMO according to the criteria set by the local council for the purposes of council tax. 

If it isn't, and the landlord has not been paying the council tax as agreed in the contract then the council won't care if it's supposed to be included in the rent or not - the tenant would be liable to pay according to their liability and would have to chase the landlord separately to enforce the terms of the contract. 

So we'd be responsible for the backpay of the council tax if it comes to that? Good to know, will brace for that possibility - thank you

NewShadow

Pine25 said:

I have paid a deposit, however our contracts are "Common Law" not AST, although the Landlord does not live here, which means (from what I've read) it doesn't have to be in a scheme.

*cough* 

Can you confirm - if you don't mind:
- what part of the country do you live in?
- how much is your rent?
- how frequently you pay it? 
- when did your tenancy start?
- what is the fixed term stated on your contract and what happens after that point?
- as far as you are aware, do the other two people currently renting the same property pay under the same terms? 
- what gives you the impression it's not an AST... other than perhaps the paper you signed saying 'common law tenancy' at the top? 

Pine25 said:

NewShadow said:

We don't know if it's a HMO according to the criteria set by the local council for the purposes of council tax. 

If it isn't, and the landlord has not been paying the council tax as agreed in the contract then the council won't care if it's supposed to be included in the rent or not - the tenant would be liable to pay according to their liability and would have to chase the landlord separately to enforce the terms of the contract. 

So we'd be responsible for the backpay of the council tax if it comes to that? Good to know, will brace for that possibility - thank you

Not necessarily - it depends on how your council decides to classify your specific living arrangements for the purposes of council tax. It can be quite simple, or it can be quite complex - given you've already been in touch with them with regards the electoral roll, why not give them a call? You've not done anything wrong and it's generally better to proactively address these things when possible. 

You'll need the dates you moved in and it would be useful to have a copy of your and your housemates tenancy agreements to hand. It might even be that the landlord has paid the required amount of tax and there's nothing for you to worry about. 

Should the council require you to pay, if your contract explicitly says the amount you pay includes council tax, it should be relatively easy to claim it back from your landlord... though I'd recommend securing alternative accommodation first.

Pine25

NewShadow said:

*cough* 

Can you confirm - if you don't mind:
- what part of the country do you live in?
- how much is your rent?
- how frequently you pay it? 
- when did your tenancy start?
- what is the fixed term stated on your contract and what happens after that point?
- as far as you are aware, do the other two people currently renting the same property pay under the same terms? 
- what gives you the impression it's not an AST... other than perhaps the paper you signed saying 'common law tenancy' at the top? 

Cough?

I'm in London, rent is £615 monthly, started June 2018, it's a year contract, when it was close to ending last year I asked if I could stay another year and I signed another contract the same as the previous one. 
I know that one of the others has the same contract, have looked at it. I have no idea what the other person is on. There have previously been students whom had shorter tenancys. 
Hmm nothing, just contract saying it. I'd say that's just a way to get around things like the deposit scheme and such as he doesn't actually live here, too. 

NewShadow

Pine25 said:

NewShadow said:

*cough* 

Can you confirm - if you don't mind:
- what part of the country do you live in?
- how much is your rent?
- how frequently you pay it? 
- when did your tenancy start?
- what is the fixed term stated on your contract and what happens after that point?
- as far as you are aware, do the other two people currently renting the same property pay under the same terms? 
- what gives you the impression it's not an AST... other than perhaps the paper you signed saying 'common law tenancy' at the top? 

Cough?

I'm in London, rent is £615 monthly, started June 2018, it's a year contract, when it was close to ending last year I asked if I could stay another year and I signed another contract the same as the previous one. 
I know that one of the others has the same contract, have looked at it. I have no idea what the other person is on. There have previously been students whom had shorter tenancys. 
Hmm nothing, just contract saying it. I'd say that's just a way to get around things like the deposit scheme and such as he doesn't actually live here, too. 

Cough indicates surprise. This is the point at which I really hope a forum regular called @G_M becomes available to give expert advice... 

To the best of my knowledge, there are only set situations under which a Common Law Tenancy can be used - namely when an AST is not possible or would be unsuitable, such as:
- when the landlord is resident;
- when the cumulative rent from the occupants exceeds £100k per year or is less than £1k per year; 
- the tenancy came into existence before AST became the default legal category of residential tenancy; or
- when it's not a residential property contract: when it's a holiday let or a commercial contract. 

Just because a contract calls itself a particular type of tenancy doesn't mean it is that type of tenancy - depending on who is living at the property, the date you moved in, who the landlord is and the type of property it is, your agreement could actually be a different type of agreement to what you have been told.

 The Shelter website has a tenancy checker you can use to check what type of agreement you actually have with your landlord.

All of the above aside - what do you want from this? 

Having the information in it's own right is useful. 

Approaching the council re council tax increases the chances of your landlord asking you to leave - but council departments do talk to each other so it's likely the council tax/housing teams will reach out to verify occupancy and liability soon given you've already spoken to the electoral team. 

Knowing you have an AST rather than CLT - and knowing your landlord has failed to protect your deposit - gives you more time to find a new home... but only if you are willing to use those facts to ignore any notice/remain in the property - and live in the hostile environment that the confrontation risks causing... 

On the other hand - after you've moved out - you could also have the opportunity to sue your landlord for three times the deposit - which may be a hefty chunk of change; and the more evidence you have of malpractice on his part, the greater the likelihood the judge will hand down the maximum penalty... but only if you decide to sue. 

oldbikebloke

NewShadow said:

oldbikebloke said:

NewShadow said:

If he hasn't been paying council tax the council could chase you for the amount owing - if it's in your contract it's included you'd have to pay the council then sue the landlord via small claims. 

sue the LL for what?
If it is an HMO then statute law says the LL is liable for the whole council tax. Nothing can be disputed over that, its the law.

This is incorrect - in law there are two different tests to be applied - a property may be an HMO and require a licence under the Housing Act 2004 but not be an HMO for council tax liability purposes OR a property may be an HMO for council tax purposes but not be an HMO under the Housing Act 2004.

you then say "if its in your contract"... well then, the tenant has agreed with the LL in writing to pay £x as a "contribution" to the LL in respect of the LL's CT liability.
Failure to make such a payment is a contractual dispute been the LL as plaintiff and the tenant as defendant.

The judge will read the contract, decide how clear it is, decide how fair it is, and find in the case of plaintiff since it categorically says pay £x and I'll bet the wording is clear.

We don't know if it's a HMO according to the criteria set by the local council for the purposes of council tax. 

If it isn't, and the landlord has not been paying the council tax as agreed in the contract then the council won't care if it's supposed to be included in the rent or not - the tenant would be liable to pay according to their liability and would have to chase the landlord separately to enforce the terms of the contract. 

? all you have done is repeat what I said, since housing law is irrelevant in the context of statute law applicable to CT, hence it is correct to say "If it is an HMO then statute law says the LL is liable for the whole council tax"
- statute law determines who pays CT: on an HMO its the LL, on a non HMO it is the occupant.
- any contract between a tenant and a LL cannot override statute law, but would form the basis for one party claiming against the other for any non adherence to a contractual clause.

NewShadow

oldbikebloke said:

NewShadow said:

oldbikebloke said:

NewShadow said:

If he hasn't been paying council tax the council could chase you for the amount owing - if it's in your contract it's included you'd have to pay the council then sue the landlord via small claims. 

sue the LL for what?
If it is an HMO then statute law says the LL is liable for the whole council tax. Nothing can be disputed over that, its the law.

This is incorrect - in law there are two different tests to be applied - a property may be an HMO and require a licence under the Housing Act 2004 but not be an HMO for council tax liability purposes OR a property may be an HMO for council tax purposes but not be an HMO under the Housing Act 2004.

you then say "if its in your contract"... well then, the tenant has agreed with the LL in writing to pay £x as a "contribution" to the LL in respect of the LL's CT liability.
Failure to make such a payment is a contractual dispute been the LL as plaintiff and the tenant as defendant.

The judge will read the contract, decide how clear it is, decide how fair it is, and find in the case of plaintiff since it categorically says pay £x and I'll bet the wording is clear.

We don't know if it's a HMO according to the criteria set by the local council for the purposes of council tax. 

If it isn't, and the landlord has not been paying the council tax as agreed in the contract then the council won't care if it's supposed to be included in the rent or not - the tenant would be liable to pay according to their liability and would have to chase the landlord separately to enforce the terms of the contract. 

? all you have done is repeat what I said, since housing law is irrelevant in the context of statute law applicable to CT, hence it is correct to say "If it is an HMO then statute law says the LL is liable for the whole council tax"
- statute law determines who pays CT: on an HMO its the LL, on a non HMO it is the occupant.
- any contract between a tenant and a LL cannot override statute law, but would form the basis for one party claiming against the other for any non adherence to a contractual clause.

Right, let's take a step back? 

1. Being a HMO and CT liability is not clear cut - there are two statutes to consider: 

• A property can be classed as a Section 257 HMO under the Housing Act: this determines if a property needs a HMO licence; 
• Separately, the property can be classed as a HMO under the The Council Tax (Liability for Owners) Regulations 1992: which are used solely for determining council tax liability.

This means the statement "If it is an HMO then statute law says the LL is liable for the whole council tax." is incorrect... a property can be classed as a HMO under statute law and the tenant still be liable for the council tax. 

2. We do not know if the OPs accommodation should be classed as a HMO for the purposes of council tax liability - I certainly haven't seen their tenancy agreement, and I'm reasonably sure you haven't - Hence me saying 'the council could chase you for the amount owing' - which they could, if it's not an HMO... hence my advice the OP talks to the council with a copy of their tenancy agreement handy to establish the facts. 

3. Should it turn out not to be a HMO for the purposes of council tax, should the council chase the OP for the outstanding tax - and if the OPs tenancy agreement explicitly includes council tax within the rent - then the OP would be required to pay the council the amount owing and sue the landlord for a refund via the small claims court... hence the part of my post your originally objected to: 

If he hasn't been paying council tax the council could chase you for the amount owing - if it's in your contract it's included you'd have to pay the council then sue the landlord via small claims. 

martindow

OP, have you looked on your borough's web site to see their criteria for HMOs?  Or tell us which borough it is if you can't find clear information.  That should let you know more about the HMO status of where you are and allow knowledgeable posters like newshadow to comment further

Pine25

martindow said:

OP, have you looked on your borough's web site to see their criteria for HMOs?  Or tell us which borough it is if you can't find clear information.  That should let you know more about the HMO status of where you are and allow knowledgeable posters like newshadow to comment further

I hadn't, but just have - the first definition for one is "a house let as individual bed sitting rooms" which is what my set up is, I was also able to search for my address to see if it has such a licence and it does not posses one. 

NewShadow said:

All of the above aside - what do you want from this? 

Thank you, I checked on that link and it suggests that yes my agreement is probably an AST. 

My motivation in this thread was to gain clarity on my situation - whether I was correct in thinking it was questionable that we were not allowed to register on the electoral roll and if there were any consequences for having done so - however it has unfolded into a lot more. 
I don't know what to do going ahead, he is doing a lot wrong and is probably making a huge profit from us without going down the correct routes which makes me uneasy. However, I don't have any knowledge in any of this myself and the idea of suing him is incredibly daunting. I believe his further family have ties in law and letting agencies so I think that would be far too big of a risk for me to try and go against them. 
I think the best thing to do is just to move out at the end of my contract and be done with the whole thing?

Thank you to all who have replied and helped me understand the situation