Annexe Rental Deposit Dispute - should they be protected?

felixPandle

From June to December 2019, I rented out a detached Annexe and was given an Assured Shorthold Agreement to sign, with a Deposit of £700.

The agreement included a lot of standard AST-based agreements, notably that council tax & bills are included 'within reason'.

The landlord and I currently have a disagreement regarding the deposit, where she's disputing that she wants to deduct £575 to alleged higher electrical uses during my tenancy.

Disputing this, and wanting to go the official routes, I searched for my deposit certificate on all of the Deposit Schemes but haven't found it. On enquiring about this with the landlord, she's responded that she doesn't have to protect my deposit as "she went through openRent, not an estate agent".

From some Googling, it seems that that if the Annexe is physically attached to her house, then the landlord doesn't have to supply an AST, but if it is - then an AST is required

And according to Gov UK website, if there's an Assured Shorthold Tenancy, a deposit is required.

The tenancy agreement definitely reads "Assured Shorthold Tenancy" on the front, in the context of an Annexe above, do AST/Required deposit terms still apply? My landlord is saying otherwise and it's very stressful for me as this has been going on for nearly 4 months now, especially during covid!

Details about the Annexe

- Exists on her drive as a separate building to the main house
- Has its own kitchen, bathroom, bedroom, plumbing etc. there are no shared spaces
- All-electric and runs off the supply from the main house
- Separate given address, but doesn't appear to be registered with the council.
Thank you for any help!

greatcrested

Whether it's an AST (as opposed to a licence (eg lodger/excluded occupier) is a question of fact. It does not matter what the contract says or is titled, it's the circumstances that determine the legal status.

If it IS an AST, any deposit paid must be protected. It does not matter if the tenant is found by a letting agent, a private advert, via a friend, or...from openrent. A deposit is a deposit and needs protecting.

In this case, the annexe appears to be self-contained, with it's own front door. The occupant appears to have 'exclusive occupation'. There are no services provided (eg cleaning, meals, changed bed linen etc), so it is 90% certain that a court would define it as an AST. If that is the case, the tenant can claim the penalty (3 times the deposit) for failure to protect the deposit.

As for the deduction, what exactly does the contract say regarding utilities?

felixPandle

I see. So really my next step here would be a court claim? I've already formally requested deposit and disputed my claims as per Citizens advice up until this point...

Regarding the deduction, the property was advertised as bills included, and the contract quite literally says, under a list of tenant agreements "Use electricity within reason"

greatcrested

Well 'within reason' is a subjective, and legally almost meaningless, phrase.

Your next step is to send a 'Letter Before Action'.

Claim back the full deposit, to be returned to you within 7 days, after which you will apply to court for both the deposit itself since you have used electricity 'within reason', as well as the penalty for 3 times the deposit for the landord's failure to protect the deposit as required by the Housing Act 2004   (as amended).

If no satisfactory response, follow shelter advice (Claiming Compensation ) using Form N208.

[Deleted User]

I will second that this sounds like an AST where the deposit should have been protected. There is no point in stressing on this point as ultimately it will be for a Court to decide and in my view it is now irresistible that you should be making a move in relation to this deposit and 1-3 times compensation.
It sounds to me like the landlady has some novel and naïve ideas about the tenancy that she has created and is about to have a rude awakening. It is suggestive of some very poor practice that your landlady has managed to create a situation where there is such confusion over the fundamentals of the tenancy - but the confusion is on her part.
As an HMO landlord I have long considered how to include a fair usage policy for utilities in my contracts and frankly its a lost cause. When I look at your contract, electricity "within reason" is a joke clause and it is even worse that she is attempting to  enforce it.
* define within reason
* £575.00 overspend in 6 months - just how?
* Have you had sight of the meter readings and bills.
* Have you been issued written warnings that you are exceeding reasonable use?
* Is there one set of meters for both properties thereby providing no indication as to your exact use of the electric?
* Do you regard your usage as reasonable for 1 person?
None of the above matters anyway, but the answers will likely only go to show why such a term is unworkable.

bouicca21

£575 is a lot for 6 months (I pay less than that for gas and electric for a year).  How did she arrive at that figure?  

CIS

The 'annexe' should be individually banded for council tax purposes and the tenant should have fallen liable for the council tax charge - it is clear that an AST has been in place and it should have been protected.

princeofpounds

Agree with all the others - the annexe (and it's not an annexe - it's a separate dwelling) should have been liable for its own council tax, and the tenancy is almost certainly an AST - separate dwelling, exclusive occupation etc.; it ticks the boxes. 

Good luck

wesleyad

Firstly, her argument is she used openrent and not an EA? What drivel, especially as openrent register the deposit for you. Which would be an odd service to offer if those using openrent didn't need to register deposits. I'm assuming she didnt need to declare tax as well for the same reason 

Really your next steps depend on how much you want this resolved quickly or whether you want to push for the penalty. Personally I would show her some evidence that this was almost certainly an AST (print off the gov guidelines). Say you have taken advice that also suggests the same (don't mention it's a load of randomers on the internet). Give her an ultimatum, full deposit returned or you will apply for the 3 times penalty for non protection. If she sticks to her guns then she has made the decision easy for you and you do a small claims. See how sure she is of her position when she realises she could lose £2100.

And then dob her in to the council/HMRC ;p

felixPandle

bouicca21 said:

£575 is a lot for 6 months (I pay less than that for gas and electric for a year).  How did she arrive at that figure?  

I agree! I've asked her several times to see her 'historical data' and any evidence she has that the alleged spike came solely from the annexe, but nothing was shown to me.

greatcrested said:

Well 'within reason' is a subjective, and legally almost meaningless, phrase.

Your next step is to send a 'Letter Before Action'.

Claim back the full deposit, to be returned to you within 7 days, after which you will apply to court for both the deposit itself since you have used electricity 'within reason', as well as the penalty for 3 times the deposit for the landord's failure to protect the deposit as required by the Housing Act 2004   (as amended).

If no satisfactory response, follow shelter advice (Claiming Compensation ) using Form N208.

Thank you!!! I've been unsure on whether I should pursue / have a case here - but I suppose it's worth a shot

brett19852010 said:

I will second that this sounds like an AST where the deposit should have been protected. There is no point in stressing on this point as ultimately it will be for a Court to decide and in my view it is now irresistible that you should be making a move in relation to this deposit and 1-3 times compensation.
It sounds to me like the landlady has some novel and naïve ideas about the tenancy that she has created and is about to have a rude awakening. It is suggestive of some very poor practice that your landlady has managed to create a situation where there is such confusion over the fundamentals of the tenancy - but the confusion is on her part.
As an HMO landlord I have long considered how to include a fair usage policy for utilities in my contracts and frankly its a lost cause. When I look at your contract, electricity "within reason" is a joke clause and it is even worse that she is attempting to  enforce it.
* define within reason
* £575.00 overspend in 6 months - just how?
* Have you had sight of the meter readings and bills.
* Have you been issued written warnings that you are exceeding reasonable use?
* Is there one set of meters for both properties thereby providing no indication as to your exact use of the electric?
* Do you regard your usage as reasonable for 1 person?
None of the above matters anyway, but the answers will likely only go to show why such a term is unworkable.

Very interesting insight from a landlord, thank you. I had a feeling that any fair-use policy would be useless, despite the fact that my electrical usage was absolutely fair. I really wasn't sure if I had a case here, but this seems to be clearing a lot up.

Comms69

Just to re-iterate what others have said. Yes it should be protected.

that doesnt stop her having a claim. It does however mean you get atleast 1,upto 3, times the value of your deposit. Plus court costs.