Subletting advice required

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    Subletting advice required

    I am currently legally subletting a room in a flat with the permission of the landlord. I have met the landlord, and so from this perspective all is above board.

    When I moved in, it was agreed between myself and the current tenant that we would go by the terms of her contract with the landlord. I paid her a deposit, which she said (by email and by text) that she would put in a deposit protection scheme.

    The next point will probably be important: from what I can remember, I did not sign anything formal or give any agreement to a contract in writing, that I can remember. I am going to ask her for a copy and see what she says. I don't have a copy myself.

    In the year and a half that she has lived here, she has been claiming single occupant council tax, therefore committing fraud. The council contacted her before Christmas, asking whether I am living at the address (I am on the electoral register) and she is now saying that I should pay her the balance that 'we' owe from the time I started living here (about £300 each). Bills were agreed by email based on the amount of council tax she originally told me, which I have been paying.

    I have now decided to move out (she has been quite nasty to me and I no longer want to live here).

    What I want to know is:
    1. As she was the one that committed council tax fraud, am I liable for that payment?
    2. Can she withhold my deposit if I refuse to pay the extra council tax?
    3. If my deposit has not been put into a DPS as she agreed, what can I do to get it back if she will not return it?

    Thanks in advance!

    #2
    If you are living in the same house but separately, the landlord is liable for the council tax, not you or the "tenant".

    1 - No, you can't be liable because when you moved in, the landlord became liable for the council tax, but as the tenant has been claiming fraudulently she doesn't want to be prosecuted and needs to pay up. She's benefitted from your rent and should have factored in the increased council tax.

    2 - She isn't actually allowed to withhold anything from your deposit without your agreement. Not that that means much when she has your money. You can use the small claims court to sue her for it.

    3 - As above.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      Hi JP,

      Thanks for your reply.

      There is a clause in the tenant's contract with the landlord which says that the tenant is responsible for paying council tax. Are you saying that the landlord is liable because I am subletting?

      If the tenant didn't give me a receipt for my deposit, is she still not allowed to withhold money?

      Comment


        #4
        My point being, if there is no 'proof' of the deposit apart from an email, a text and my bank statement, is she still not allowed to withhold the money?

        Comment


          #5
          If the tenant is also resident as your post suggests, then there is no requirement to protect the deposit in a scheme as you would be a lodger rather than a sub-tenant. As such you have very few rights and obviously don't have the same deposit protection process as assured tenants. I agree with JPK above but if the tenant, your landlord chooses to make the deduction from your deposit your only option would be to sue her for its return. You would probably win so in your situation I would send a robust letter to the tenant making clear that having taken advice you are clear that you are due a full refund and would be prepared to take legal action to recover it.

          Comment


            #6
            Originally posted by peacelily View Post
            Hi JP,There is a clause in the tenant's contract with the landlord which says that the tenant is responsible for paying council tax. Are you saying that the landlord is liable because I am subletting?

            If the tenant didn't give me a receipt for my deposit, is she still not allowed to withhold money?
            It's the law that says who is responsible for council tax, and no contract can override that.
            The contract might mean that the landlord could ask the tenant to reimburse them for any tax they're forced to pay (depending on the exact wording).

            The lack of a receipt makes it simpler for the tenant to claim that they didn't ever receive a deposit, but it doesn't change anything else.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              From my reading of the original post:

              [Superior] (non-resident) Landlord -> Tenant (OP's resident landlord) -> OP (Tenant's lodger).

              In that case, the tenant is the one legally liable for paying the council tax since she is a resident with a superior interest than any other resident (OP).
              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

              Comment


                #8
                Are you actually a tenant, or are you a lodger? Roughly, does your intermediate landlord need to give you 24 hours notice before entering your room, and are there parts of the flat where only they are allowed?

                Also, as I read http://www.legislation.gov.uk/uksi/1...ulation/2/made the intermediate landlord has a tenancy for the whole dwelling, and so doesn't trigger part C. As such, I would say it was the intermediate landlord that was responsible, not the superior one.

                I could be wrong, but sub-paragraph (3) of https://www.legislation.gov.uk/ukpga/1992/14/section/6 could mean the OP and the intermediate landlord are jointly and severally responsible, so the council could go after either. Being a lodger would make a difference, in that case. (Sub-paragraph 6(2)(c) isn't split between whole an part cases, so, to me, still seems to be live for the OP, if the OP has a tenancy, whereas, if the OP has a licence, the search for payers stops at (c) and doesn't proceed to (d).) It may be best to ask the council.

                Comment


                  #9
                  You could be right (and you usually are).
                  I read the first post that they went by the terms of the original agreement with the landlord, but I think I misunderstood.

                  If peacelily is a lodger, there's no liability at all for the council tax, and I'd tell the landlord to pay the tax they owe.
                  I don't see any way that it can be (legally) deducted from a deposit unless the lodger's agreement included a term making the lodger responsible for the tax.
                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                    #10
                    Let's wait for ss002d6252 to come along and tell us how we're all wrong.
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    Comment


                      #11
                      It sounds to me (at least so far) as if
                      - you are a lodger.
                      - your landlord (your flatmate) is responsible for council tax and can pass on to you whatever proportion you agreed (ranging from zero to all of it). However I suspect from the point of view of the Council you are jointly defrauding them (council tax is chargeable on the property, not per person) and I suppose they could conceivably chase you directly but you will have a good case to decline payment directly to them.

                      It boils down to what you agreed about the council tax (if you agreed a specific amount, then you owe that amount --- if however you agreed to pay half the council tax then you owe half the correct council tax and the fact that she tried to evade it before does not absolve you as far as I can see)

                      So I think the answer to your questions are
                      a) Depends on what you agreed
                      b) Depends on what you agreed - if you paid half of all the council tax that the council requested so far I think that sort-of makes an agreement
                      c) Irrelevant -- DPS protection is not required

                      Comment


                        #12
                        Yes, I am a lodger and the intermediate tenant has a tenancy for the whole flat.

                        A specific amount of council tax was agreed when I moved in, which I have been paying with my rent and the other bills each month.

                        From what I have read on the government website, the liable tenant is the one responsible for informing the council re changes of circumstances.

                        https://www.citizensadvice.org.uk/ho...x/council-tax/

                        From this page above, I understand it that as I am a lodger, and not part of the original contract, the tenant (my landlord) is liable based on the hierarchy of liability.

                        So my landlord has been fraudulently claiming single person discount the whole time she has been living here (I am her second lodger).

                        Comment


                          #13
                          s6(3) of the LGFA92 only applies where there are parties with the same legal interest - e,g. two resident owners would fall jointly liable.

                          As the OP states they are only a lodger then the 'landlord' has the higher legal interest under s6(2)(c) of the LGFA92 and would be liable for the council tax charge - they are the person responsible for claiming any council tax discounts and any issues regarding payment of council tax are only contractual between the landlord and the lodger, the council are not involved in that.

                          As to whether the 25% discount is wrong or not depends on whether the lodgers had the property as their 'sole or main residence' or not (and to a secondary extent whether they fall to be disregarded for council tax purposes).
                          Previously served 10 years as a council tax advisor with a local authority but now self-employed with my own council tax consultancy.

                          If your local authority disagrees with any aspects of your council tax claim, as they are free to do so, a Valuation Tribunal appeal may be required.

                          Comment


                            #14
                            Thank you all for your replies- I think I've got everything clear about the council tax now!

                            Concerning my deposit, it turns out that this was not put in the DPS as she agreed in writing that it would be. I understand that as I am subletting, this isn't legally required. However, she did assure me that it would be.

                            If she refuses to give my deposit back, what would I do? Can she legally withhold the money from me as it was not put in a deposit protection scheme?

                            And what would my next step be, if this was the case?

                            I'm trying to weigh up the pros and cons of just paying the council tax money (that I don't owe) or not giving her the money and risking not ever getting my money back (which is 4x the amount of the council tax).

                            Really appreciate any more advice!

                            Comment


                              #15
                              As I said earlier, there is no requirement for her to have put the money in a deposit scheme. The fact that she said she would is pretty irrelevant as she could change her mind. I wouldn't get hung up on that line if I were you.

                              The deposit money is your, not hers. She is currently just holding it. As I also said earlier, you would probably win any court case you choose to bring to force her to repay the deposit. It's up to you. If you're prepared to write her a strongly worded letter threatening legal action if she doesn't return your deposit and ultimately follow through if she ignores it then you would stand a good chance of getting your money back. If you don't want to do that then by all means pay her the money she claims you owe. Its up to you.

                              Comment

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