Landlord Keeping my Deposit (Lodger)

_Penny_Dreadful

Bookworm105 said:

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. en

that is not how I read it, the child moved out and was replaced with a different child and the (titular) LL was never resident at all
Shelter Legal England - Excluded occupiers - Shelter England

For the occupier to be excluded it is necessary that the:

landlord's family member must have occupied the same premises of which the whole or part of the shared accommodation with the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end, and

landlord must live in the same premises of which the whole or part of the shared accommodation between their family member and the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end

On balance it would be worth the OP contacting Shelter and get them to make a judgement on whether it is a "sham" lodger agreement. I still think it is.

I realise the landlord themselves has never lived in the property. However, it appears a member of the landlord’s family has been occupation almost the entire time, first one son and then the other son which is why I think the OP was an excluded occupier. 

RHemmings

_Penny_Dreadful said:

Bookworm105 said:

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. en

that is not how I read it, the child moved out and was replaced with a different child and the (titular) LL was never resident at all
Shelter Legal England - Excluded occupiers - Shelter England

For the occupier to be excluded it is necessary that the:

landlord's family member must have occupied the same premises of which the whole or part of the shared accommodation with the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end, and

landlord must live in the same premises of which the whole or part of the shared accommodation between their family member and the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end

On balance it would be worth the OP contacting Shelter and get them to make a judgement on whether it is a "sham" lodger agreement. I still think it is.

I realise the landlord themselves has never lived in the property. However, it appears a member of the landlord’s family has been occupation almost the entire time, first one son and then the other son which is why I think the OP was an excluded occupier. 

I'm not arguing that the OP has an AST or not. This is a complicated case that I believe needs an experienced professional to advise on. 

However, I looked up the definition of what makes an AST on gov.uk, and I can't see how the current situation specifically exludes the real situation being an AST. E.g.

https://www.gov.uk/tenancy-agreements-a-guide-for-landlords/tenancy-types

Tenancy types

Assured shorthold tenancies (ASTs)

The most common form of tenancy is an AST. Most new tenancies are automatically this type.

A tenancy can be an AST if all of the following apply:

• you’re a private landlord or housing association
• the tenancy started on or after 15 January 1989
• the property is your tenants’ main accommodation
• you do not live in the property

A tenancy cannot be an AST if:

• it began or was agreed before 15 January 1989
• the rent is more than £100,000 a year
• the rent is less than £250 a year (less than £1,000 in London)
• it’s a business tenancy or tenancy of licensed premises
• it’s a holiday let
• the landlord is a local council.

From what I see here, it also passes Shelter's Tenancy type checker. https://england.shelter.org.uk/housing_advice/downloads_and_tools/tenancy_checker 

It is a complicated situation, and I'm not saying that I fully believe that the OP has an AST. But, it seems plausible. And, checking further may be a good idea. 

If I was in the OP's situation, I would talk to Shelter. And, I would spend the £3 to get a copy of the title deeds and check if the landlord is legally the one who owns the property. But, I believe (note: not 'know') that the tenancy agreement (such as I fear it may be) will be the definitive identifier of the landlord. 

Bookworm105

RHemmings said:

If I was in the OP's situation, I would talk to Shelter. And, I would spend the £3 to get a copy of the title deeds and check if the landlord is legally the one who owns the property. But, I believe (note: not 'know') that the tenancy agreement (such as I fear it may be) will be the definitive identifier of the landlord. 

you do not have to own a property to be the landlord entitled to rent from letting it, so the deeds won't add anything to the position. You are correct that the agreement identifies the landlord (the person to whom rent is payable), although there is also a legal form that can be used for the purpose if the LL changes.

Bookworm105

_Penny_Dreadful said:

Bookworm105 said:

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. en

that is not how I read it, the child moved out and was replaced with a different child and the (titular) LL was never resident at all
Shelter Legal England - Excluded occupiers - Shelter England

For the occupier to be excluded it is necessary that the:

landlord's family member must have occupied the same premises of which the whole or part of the shared accommodation with the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end, and

landlord must live in the same premises of which the whole or part of the shared accommodation between their family member and the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end

On balance it would be worth the OP contacting Shelter and get them to make a judgement on whether it is a "sham" lodger agreement. I still think it is.

I realise the landlord themselves has never lived in the property. However, it appears a member of the landlord’s family has been occupation almost the entire time, first one son and then the other son which is why I think the OP was an excluded occupier. 

I must admit I was expecting the Shelter info to be a lot clearer than it is. Hence I think OP needs to speak to Shelter 

RHemmings

Bookworm105 said:

RHemmings said:

If I was in the OP's situation, I would talk to Shelter. And, I would spend the £3 to get a copy of the title deeds and check if the landlord is legally the one who owns the property. But, I believe (note: not 'know') that the tenancy agreement (such as I fear it may be) will be the definitive identifier of the landlord. 

you do not have to own a property to be the landlord entitled to rent from letting it, so the deeds won't add anything to the position. You are correct that the agreement identifies the landlord (the person to whom rent is payable), although there is also a legal form that can be used for the purpose if the LL changes.

No, but if the landlord, as per the rental agreement, is on the deeds, this makes the position clearer. As per my belief in my post, the rental agreement is definitive. 

Ratkin007

I don't know about tenancy/lodger, but it appears the property was a HMO. Check your local authority website to see whether they have an Additional Licensing Scheme, as it appears there were 4 occupants, (3 so called lodgers and owners son). A Mandatory HMO is 5 persons in 2 or more households.  If the council has an Additional Scheme then check whether the property had a licence, there should be an online register.  If the property was not licensed but was required to be, then you may be able to apply for a rent repayment order.  If an owner has 2 lodgers, they are not required to be licensed however as there were 3 lodgers, the property would be required to be licensed if there is an Additional Licensing scheme in operation.  The private sector housing team or environmental health team that deals with licensing would be able to advise you further. 

Bookworm105

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. In this case the landlord’s sons were sharing accommodation with @goblingoblingoblin so I think goblingoblingoblin was an excluded occupier and not a tenant with an AST. 

The first step of getting the deposit returned is to send a letter before action to the landlord requesting your full deposit back within 14 days. If/when the landlord doesn’t return your deposit you need to file a Money Claim Online to go to small claims court. Winning a judgement is easy but enforcing a judgement is another thing entirely. 

anyway, whether lodger or tenant, OP should, as I previously mentioned, check the HMO status given the number of occupants and I think we can take as read, each with their own "contract" and certainly not a single household....

_Penny_Dreadful

Bookworm105 said:

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. In this case the landlord’s sons were sharing accommodation with @goblingoblingoblin so I think goblingoblingoblin was an excluded occupier and not a tenant with an AST. 

The first step of getting the deposit returned is to send a letter before action to the landlord requesting your full deposit back within 14 days. If/when the landlord doesn’t return your deposit you need to file a Money Claim Online to go to small claims court. Winning a judgement is easy but enforcing a judgement is another thing entirely. 

anyway, whether lodger or tenant, OP should, as I previously mentioned, check the HMO status given the number of occupants and I think we can take as read, each with their own "contract" and certainly not a single household....

Living in the property there were the landlord’s son and 3 lodgers so that does make it a HMO but not an HMO subject to mandatory licensing. It’s possible the property is in an area with selective licensing and that might provide the OP with another stick with which to beat the landlord with if there’s no licence for the property. 

Ultimately the OP wants their deposit back and the way to go about it is LBA followed by MCOL and then enforcement.  All this AST versus excluded occupier is muddying the waters as it would be down to a court (not small claims court though) to decide which it was and all the OP really wants is their £1,000 back.  The remaining occupants might wish to challenge their status though. 

One last thing, I’d like to pick up on an earlier point you made about an overseas landlord requiring a UK agent. The address for the serving of notices in an AST must be in England or Wales. An address in Scotland or Northern Ireland would not be sufficient. 

Bookworm105

_Penny_Dreadful said:

Bookworm105 said:

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. In this case the landlord’s sons were sharing accommodation with @goblingoblingoblin so I think goblingoblingoblin was an excluded occupier and not a tenant with an AST. 

The first step of getting the deposit returned is to send a letter before action to the landlord requesting your full deposit back within 14 days. If/when the landlord doesn’t return your deposit you need to file a Money Claim Online to go to small claims court. Winning a judgement is easy but enforcing a judgement is another thing entirely. 

anyway, whether lodger or tenant, OP should, as I previously mentioned, check the HMO status given the number of occupants and I think we can take as read, each with their own "contract" and certainly not a single household....

Living in the property there were the landlord’s son and 3 lodgers so that does make it a HMO but not an HMO subject to mandatory licensing. It’s possible the property is in an area with selective licensing and that might provide the OP with another stick with which to beat the landlord with if there’s no licence for the property. 

Ultimately the OP wants their deposit back and the way to go about it is LBA followed by MCOL and then enforcement.  All this AST versus excluded occupier is muddying the waters as it would be down to a court (not small claims court though) to decide which it was and all the OP really wants is their £1,000 back.  The remaining occupants might wish to challenge their status though. 

One last thing, I’d like to pick up on an earlier point you made about an overseas landlord requiring a UK agent. The address for the serving of notices in an AST must be in England or Wales. An address in Scotland or Northern Ireland would not be sufficient. 

as i said twice already, check with council whether licensing is required 

I think AST / HMO threats may be more effective in obtaining full deposit return than going through court and trying enforcement action against a Lebanese resident with a history of not following the book

some threads need to be super pedantic over the constituent countries of the UK, but this is not one of them, as the property has clearly been identified as being in London

_Penny_Dreadful

Bookworm105 said:

_Penny_Dreadful said:

Bookworm105 said:

_Penny_Dreadful said:

I don’t agree with @Bookworm105 or @theartfullodger that this was an AST.  It still counts as having a resident landlord if a member of the landlord’s family shares accommodation with the person he or she is letting to. In this case the landlord’s sons were sharing accommodation with @goblingoblingoblin so I think goblingoblingoblin was an excluded occupier and not a tenant with an AST. 

The first step of getting the deposit returned is to send a letter before action to the landlord requesting your full deposit back within 14 days. If/when the landlord doesn’t return your deposit you need to file a Money Claim Online to go to small claims court. Winning a judgement is easy but enforcing a judgement is another thing entirely. 

anyway, whether lodger or tenant, OP should, as I previously mentioned, check the HMO status given the number of occupants and I think we can take as read, each with their own "contract" and certainly not a single household....

Living in the property there were the landlord’s son and 3 lodgers so that does make it a HMO but not an HMO subject to mandatory licensing. It’s possible the property is in an area with selective licensing and that might provide the OP with another stick with which to beat the landlord with if there’s no licence for the property. 

Ultimately the OP wants their deposit back and the way to go about it is LBA followed by MCOL and then enforcement.  All this AST versus excluded occupier is muddying the waters as it would be down to a court (not small claims court though) to decide which it was and all the OP really wants is their £1,000 back.  The remaining occupants might wish to challenge their status though. 

One last thing, I’d like to pick up on an earlier point you made about an overseas landlord requiring a UK agent. The address for the serving of notices in an AST must be in England or Wales. An address in Scotland or Northern Ireland would not be sufficient. 

as i said twice already, check with council whether licensing is required 

I think AST / HMO threats may be more effective in obtaining full deposit return than going through court and trying enforcement action against a Lebanese resident with a history of not following the book

some threads need to be super pedantic over the constituent countries of the UK, but this is not one of them, as the property has clearly been identified as being in London

I doubt an AST threat will do much since it’s not clear the OP had an AST. What would proving it achieve other than allowing the OP to sue for non-protection of the deposit when you think taking the landlord to court for the deposit would be pointless. The HMO route might have legs but only a few areas within some boroughs have additional licensing for HMO. Whilst you say the landlord hasn’t been doing things by the book I think he’s been sailing close to the wind and keeping just within the confines of the law by installing his son’s in the property so I wouldn’t be surprised if the property isn’t in an area with additional licensing. Then again quite a few landlords get caught with their pants down when it comes to additional and selective licensing. 

It is not a case of being super pedantic, it’s a case of being accurate with regards to the legislation. You’re the one who brought up requiring an agent in the UK and for an AST that is not what the legislation requires. The legislation is clear than for an AST the landlord must supply an address in England or Wales for the serving of notices. I have seen the UK used as sloppy shorthand on this forum many times but it is not correct.