Landlord witholding most of deposit for final month rent that was never placed in protection scheme

propertyrental

Olinda99 said:

for me the situation is as follows - although of course it is quite possible that I'm wrong! Sadly - yes.

your daughter signed an AST document - this is invalid No, just because it is wrongly labelled does not make it invalid.  because as explained above it is not possible to create an AST in this situation therefore there is no contract in place There is a contract and the terms (rent, length, notice etc) are as written. It just isn't an Assured Shorthold Tenancy.

this being so your daughter was on a periodic tenancy and the amount of notice she had to give is equal to the rent period eg if she paid rent monthly then she had to give one month's notice if periodic, that would be the norm (though not always). But no, it's not periodic. She clearly signed a 6 month contract.

the landlord is entitled to keep this rental whether she is actually living at the place or not

Not sure what your last sentence means, but the LL can keep the deposit to cover rent even if she moves out, unless a different agreement is reached.

Hence the need to negotiate, and hence my suggestions about possible negotiation 'tactics'.

Olinda99

sorry I disagree with you in the nicest possible way!


"Contracts that are void are unenforceable by law. This is the same for both parties and means that neither could take the matter to court to try and obtain a remedy. The position is as if the contract never existed."

neither party could take the other to court and enforce an assured shorthold tenancy. therefore the contract is void

https://www.hja.net/expert-comments/blog/dispute-resolution-for-individuals/how-can-a-contract-be-held-voidable-or-void/

what I meant with my last point is that if for example she pays rent monthly then the landlord is entitled to 1 month notice or 1 months rent in lieu

propertyrental

Olinda99 said:

sorry I disagree with you in the nicest possible way!


"Contracts that are void are unenforceable by law. This is the same for both parties and means that neither could take the matter to court to try and obtain a remedy. The position is as if the contract never existed."

neither party could take the other to court and enforce an assured shorthold tenancy. therefore the contract is void

https://www.hja.net/expert-comments/blog/dispute-resolution-for-individuals/how-can-a-contract-be-held-voidable-or-void/

what I meant with my last point is that if for example she pays rent monthly then the landlord is entitled to 1 month notice or 1 months rent in lieu

Not sure why you provided that link- it adds nothing. Yes, "Contracts that are void are unenforceable by law" but this contract is not void!

Olinda99

ok I will try and explain it one more time and then I'll stop

both sides signed an AST contract.it was headed AST contract and both parties when they signed it believed it was an AST contract. therefore an AST contract exists

unfortunately an AST contract is not valid in a lodger situation and therefore is unenforceable by law. this means that if either party went to court trying to enforce the terms of an AST contract it would be thrown out

because it is unenforceable by law then the contract is void

so what is left in its place ? it is certainly not a contract converted miraculously into some kind of six months lodger contract! Nothing is left in its place.

Therefore, because no contract is in place, the lodger has a periodic lodger tenancy where notice has to be given depending on the rental payment period EG if rent is paid monthly then a one-month notice has to be given. it is not an AST

therefore the lodger has to either give one month notice or can leave any time but obviously has to pay the one month's rent in lieu

_Penny_Dreadful

Olinda99 said:

ok I will try and explain it one more time and then I'll stop

both sides signed an AST contract.it was headed AST contract and both parties when they signed it believed it was an AST contract. therefore an AST contract exists

unfortunately an AST contract is not valid in a lodger situation and therefore is unenforceable by law. this means that if either party went to court trying to enforce the terms of an AST contract it would be thrown out

because it is unenforceable by law then the contract is void

so what is left in its place ? it is certainly not a contract converted miraculously into some kind of six months lodger contract! Nothing is left in its place.

Therefore, because no contract is in place, the lodger has a periodic lodger tenancy where notice has to be given depending on the rental payment period EG if rent is paid monthly then a one-month notice has to be given. it is not an AST

therefore the lodger has to either give one month notice or can leave any time but obviously has to pay the one month's rent in lieu

I disagree and I expect a court would disagree with your take on this. Just because the contract calls itself an AST yet cannot be an AST does not mean all terms are null and void. The wrongly titled contract still set out the intent that there was an amount of rent to be paid by a set date and there was a fixed term of 6 months. I’m quite sure if the roles were reversed and the landlord wanted the lodger to leave early the lodger would have no problem convincing the court that there was a 6 month fixed term in place. 

doodling

Hi,

Olinda99 said:

ok I will try and explain it one more time and then I'll stop

both sides signed an AST contract.it was headed AST contract and both parties when they signed it believed it was an AST contract. therefore an AST contract exists

unfortunately an AST contract is not valid in a lodger situation and therefore is unenforceable by law. this means that if either party went to court trying to enforce the terms of an AST contract it would be thrown out

because it is unenforceable by law then the contract is void

so what is left in its place ? it is certainly not a contract converted miraculously into some kind of six months lodger contract! Nothing is left in its place.

Therefore, because no contract is in place, the lodger has a periodic lodger tenancy where notice has to be given depending on the rental payment period EG if rent is paid monthly then a one-month notice has to be given. it is not an AST

therefore the lodger has to either give one month notice or can leave any time but obviously has to pay the one month's rent in lieu

The flaw in your argument is the huge (and invalid) assumption in bold.  Surely if no contract is in place then the lodger has no right to be there?  It is as if the OP's daughter has just walked into the house with no agreement as to why she is there.

If we ignore the existing contract then it is clear that the parties intended to agree something (otherwise what is the OPs daughter doing in the LL's house?).  It appears that they intended some form of renting arrangement.

The question then what are the details of that arrangement - is there any evidence to help us here?  Well there is a contract, it is a bit confused about the law but otherwise it states the terms of the arrangement in reasonably plain English.  Unless there is any evidence to the contrary then that presumably describes what the parties intended, despite their mutual misunderstanding of the law.

There is no principle that if a contract is in some way wrong then it is replaced by a different contract with random terms.  There are legal constraints on what some contracts may contain but I'm not aware of any laws which state that if the wrong law is referenced then the whole contract is void (and if they did then see above, it doesn't help the OP's daughter).

theartfullodger

Yes I agree it is not an AST.  But there is a contract - and those terms relevant in the non-AST world carry over - eg dates (start, payment..) parties (landlord, tenant), property, rent (amount, any increases etc) and any other terms (eg no pets or agreeing to little fido, or no music after 10:00pm...). 

{Just as say a tenancy was actually an AST but the terms on a handwritten A4 sheet simply said dates, rent, parties, property: Then it would be an AST, with those terms would carry over}

Lodger/tenant is perfectly entitled to take the matter to court and sue LL for deposit....

Trouble is, small claims or court may or may not see it my way (or yours, or some other person's way)...

propertyrental

Oh dear! I too will try one last time and then stop. The error you make is the assumption I highlight  underlined in bold below

Olinda99 said:

ok I will try and explain it one more time and then I'll stop

both sides signed an AST contract.it was headed AST contract and both parties when they signed it believed it was an AST contract. therefore an AST contract exists (no - an AST does/did not exist.

unfortunately an AST contract is not valid in a lodger situation and therefore is unenforceable as an AST by law. this means that if either party went to court trying to enforce the terms of an AST contract it would be thrown out Yes, those elements of the contract that related to an AST would be thrown out eg if the T claimed the penalty for non-protection of deposit

because it is unenforceable by law then the contract is void No. Just because one or more clauses or elements of the contract are unenforceable does not mean the rest of the clauses are unenforceable, or that the contract is void.

As an alternative example, as a LL I could write a clause into my tenancy agreement (let's say it IS an AST) saying "The tenant agrees to cook and eat a full sunday roast each Sunday, after attending church." This clause would be unenforceable inl aw, but the AST as whole would not be void- just that clause.

so what is left in its place ? it is certainly not a contract converted miraculously into some kind of six months lodger contract! Nothing is left in its place. What nothing? The lodger has been paying rent. The landlord has been providing the lodger with a room and other facilities. Of course a contract exists! The question is, what form or contract?

Therefore, because no contract is in place, Errrrr... the lodger has a periodic lodger tenancy Ah! so you agree that there IS a contract (though you are wrong to call it a 'tenancy'. It's not. It's a 'licence to occupy' which is another form of contract. Now why assume this contract must be periodic? There was clear agreement to a fixed term, and no legal impediment to this. The legal impediment was simply to its being an AST.
where notice has to be given depending on the rental payment period EG if rent is paid monthly then a one-month notice has to be given. Usually, but not always, correct. 
it is not an AST Finally you have got something right!

therefore the lodger has to either give one month notice or can leave any time but obviously has to pay the one month's rent in lieu

Well, if rent must be paid and notice must be given, then.... there must be a contract! If there were no contract at all (you claim it is void) the the 'occupant' (who would be neither a tenant nor licencee) could walk away without any payment at ant time, just like a 'guest'.

And if, as is the case, there IS a contract, then the terms must be.... whatever the parties agreed (subject only to the law ie rights and obligations imposed/granted by the Housing Act to ASTs would be excluded).

saajan_12

Another voice for the contract remaining in force, as a 6 month agreement.

A single incorrect line in a contract would just be ignored and the rest of the contract remain in place, whether thats one clause / typo / heading that doesn't even actually state with either party must do. 

km1500

it's not the typo or single incorrect line that is the problem. I agree that these would not necessarily void a contract. the problem is that when it was signed both parties assumed and signed it on the basis of the fact of it being an AST when clearly it could never be.