Wrongly given out a Lodger Agreement instead of AST??

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    Wrongly given out a Lodger Agreement instead of AST??

    Hi. It seems I've made a bit of a mistake in renting out my bedroom.

    I had been living in my own house and renting out the spare room to a lodger.

    I then went overseas (quite quickly in Sept) and rented out my own personal bedroom to another lodger, using a lodger agreement . As I was in quite a rush I simply used the document for the first lodger who did live with me, and changed the main details. I did think the new lodger would also be classed as a lodger as all of my personal belongings and furniture remained in the house and my name only was on the bills.

    I returned in December for a trip and went to the house and was disappointed to see it in quite a state, and sent an email to the lodgers (tenants), specifically commenting on the state of the carpet (in 3 months) in my bedroom that was being let and received no reply.

    In February I gave the girl 6 weeks to move out, which she actually did in 2 weeks. In all of my dealings with her I had been more than fair, reasonable and helpful. After being messed around for a few days by her I went back to the house to move back in, but the bedroom specifically was filthy; the carpet still heavily stained, in addition the time it took me to clean AND get my key back from her meant I could not move in the day after she stopped paying rent, but over 1 week later.

    She asked for the deposit and I sent a rather long email detailing why I would not return it, and providing evidence for carpet cleaning hire, time spent cleaning after her and detailing lost days rent for the time she kept the key and so on.

    I have just received an email from her (3 weeks later) stating that she had sought legal advise and was entitled to 1-3 times the deposit (less a random £100 gesture of goodwill that has been backed up with nothing) as I should have given her an AST instead of a lodger agreement, and would take me to court unless I paid her.

    I appreciate that I should have researched this a little more BEFORE getting to this point, but I didn't and don't wish to have comments that state so - I am merely looking for advice;

    1. Is it true that as my belongings were there and my name on the bills that she would be a lodger not a tenant?
    2. Aside from the fact that I still DON'T believe she is entitled to the return of her deposit due to the reasons mentioned above, can it actually be that in addition to wrecking the carpet I have to return her deposit AND still risk being fined up to 3 times the deposit for up to 6 years, would a disclaimer signed by her (if i DID decide to return the deposit) stand up. If not there is no point in returning her deposit.
    3. Are the return of the deposit and the deposit penalty of 1-3 times - separate issues to be considered totally independently of each other?
    4. Is a court seriously likely to fine me up to £1500 for an honest mistake, whilst the lodger/tenant is able to get away with wrecking my carpet etc? At this moment in time I am considering allowing it to go to court.

    I would genuinely appreciate any advice that can be offered and particularly from anyone who has been in a similar situation...... what a mess!!!

    #2
    I woudn't sweat it. It sounds like she was a lodger to me, and that is the line I would be sticking to.

    (I don't suppose there was a third bedroom, is there?)

    Comment


      #3
      Originally posted by maidmistake View Post
      1. Is it true that as my belongings were there and my name on the bills that she would be a lodger not a tenant?
      2. Aside from the fact that I still DON'T believe she is entitled to the return of her deposit due to the reasons mentioned above, can it actually be that in addition to wrecking the carpet I have to return her deposit AND still risk being fined up to 3 times the deposit for up to 6 years, would a disclaimer signed by her (if i DID decide to return the deposit) stand up. If not there is no point in returning her deposit.
      3. Are the return of the deposit and the deposit penalty of 1-3 times - separate issues to be considered totally independently of each other?
      4. Is a court seriously likely to fine me up to £1500 for an honest mistake, whilst the lodger/tenant is able to get away with wrecking my carpet etc? At this moment in time I am considering allowing it to go to court.
      The penalty and the deposit issue would be (in this case) seperate. While the court have the power in a deposit protection penalty case to order the return of the deposit to a former tenant, it's discretionary. If you are entitled to deduct from the deposit for damages etc., then the court shouldn't order the deposit to be returned, and if the damage is more than the deposit then any penalty can be setoff against the penalty.

      Don't "return the deposit". If you pay her a sum of money, even if it's exactly the amount of the deposit, do so on the basis that it's a settlement of the penalty claim.

      Take specialist legal advice on the subject of whether she had an AST or not.
      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.

      I do not answer questions through private messages which should be posted publicly on the forum.

      Comment


        #4
        There is an argument that while living 'away', it would count as still being the primary residence - but I can't see that working when every bedroom is rented (evidenced by he couldn't move back in while one room was 'out of commission').

        It doesn't sound to me like a detailed inventory / schedule was taken, or any actual costs calculated for deposit deductions. ('Lost rent' - when the room wasn't intended to be let out again?). Preventing landlord's arbitrarily keeping deposits was one of the main purposes of the legislation.

        I wouldn't expect a court to be particularly sympathetic, but who knows. It's a big risk if she finds a no-win, no-fee, lawyer to take it on who is asking for costs as well.

        Comment


          #5
          Thanks so far all, it good to get others perspectives! !

          No there was no 3rd bedroom, but I have a rather large and comfy sofa and being bit of a traveller sleeping on a sofa is not too much of a sweat, had I been in a position where it was necessary I could stay here.

          Ted...As stated, i did provide detailed evidence costs of my losses, and recipts ,with the 'loss of rent' perhaps being incorrectly worded.
          She had phoned me and said in order to secure a room she had seen she would need to move at the end of the month, so she wasn't paying rent at both places, ofcourse i agreed to this. She then did not move all of her belongings and did not return the keys at the end of the month (i had to collect them from her, which she made tricky for me) some 4 days later, I'm charging an extra 3 days for cleaning the carpets (twice) and drying time as she failed to leave the carpet in the state I had left it for her.this was to bring the carpet back to the condition in which it was a few months earlier when she took possession of the room and to hopefully alleviate the need to replace. Sadly that didn't work and the carpet still needs replacing.
          I have photos, emails and other messages repeatedly telling her the state of the carpet was not acceptable, that i would be hiring a cleaner and she choose to ignore all and not even hoover or clean before she left.
          I guess I could have moved all my clothes and a few bits back in, but seemed trickier cleaning a carpet in a room full of stuff (some of hers too still ) then it didn't to clean it when it was as empty as possible.
          Surely it's unreasonable to expect me to be out of pocket in terms of her moving out late and wrecking my property?
          My main concern is that she now appeaRs to be blackmailing me ... if you don't return my deposit (less a random gesture of goodwill) I'll take you to court. ...argh

          Comment


            #6
            I think she could be a lot more unreasonable if she really wanted to. I think that as you let your own bedroom before going overseas that there is a good chance that a court will find that she has an AST and that could potentially also open up a claim for illegal eviction, and as Ted.E.Bear says, you don't want her to start appointing NWNF lawyers or your costs will go through the roof.

            Comment


              #7
              Originally posted by maidmistake View Post
              My main concern is that she now appeaRs to be blackmailing me ... if you don't return my deposit (less a random gesture of goodwill) I'll take you to court. ...argh
              A letter before action in accordance with the Civil Procedure Rules is not blackmail........
              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.

              I do not answer questions through private messages which should be posted publicly on the forum.

              Comment


                #8
                Thanks for your advice all, as mentioned above these seem to be 2 separate issues, and at the moment not going away;

                Non protection of deposit.
                I do not dispute that I may have made a mistake (and if the courts decide) that I should pay for this - after all there is nothing I can do about it anyway.
                I have tried to get legal advice but all of the 'free' services in my area refuse to help landlords. I am not a professional landlord, and with regards to the 'seeking legal advice' can't afford £200/hr quoted by a solicitor, who, after a quick discussion advised it was a grey area whether she was a lodger or a tenant, which seems to be the crux of the issue. This house is my home and has been considered nothing but my primary residence by me, hence all of my belongings being kept her and my name remaining on the bills etc. Will this go some way to mitigating the penalty - or will I likely be fined the full 3 x?

                The actual Deposit
                Whilst there was no detailed inventory (btw, do people really take photos of and comment on every square inch of carpets and walls and bedding etc?). There were photographs sent to her of the room prior to her moving in, house rules stating the property was to be cleaned, my email months before detailing my initial issues with the carpet and many photos and videos of the staining caused. Also I have it in writing from her that she admits causing the damage.
                I am confident I have the evidence with regards to the non return of the deposit in terms of messages, emails, photos and videos of the ruined carpet - all sent to her, though she continually fails to read my emails correctly in regard to me waiving all my cleaning time in a bid to resolve the issue (and to settle the above issue in full and final settlement), and in the most recent case, whilst repeatedly and incorrectly claiming I haven't sent her photographic evidence (which I did yet again) to point blank just ignoring my last email with every single photo and video resent - via a file sharing device as there was so many.

                Update
                Along with now sending the letter before action, she is also saying that I broke the law by not doing the following;
                ' You must do a 'right to rent check'before they rent a home in England. This means the landlord must check the immigration status of anyone aged 18 or over who will be living with in the house. It is a CRIMINAL OFFENCE if you do not do this. The landlord must ask to see your passport or other official documents that prove your immigration status. They must take copies of the documents and keep the copies safe.
                You failed to do this.
                2. At the start of your tenancy the landlord must provide:
                · an Energy Performance Certificatefor the home
                · a gas safety certificate (if the home has gas appliances)
                · a copy of the latest government guide: How to rent - if you have an assured shorthold tenancy that started or was renewed on or after 1 October 2015


                What are the implications of the above?

                Now I have the letter before action, going down the Small Claims Court route, for the 3 x compensation (her words), and she says, as it is small claims I cannot recover my legal fee's.

                Also should she not be capable of presenting a concise case against me? Hers is not. She fails to understand what I am telling her, doesn't read my correspondence correctly and ignores key information that I have sent her. Will the courts not take a dim view of the fact that she has ignored my correspondence and has failed to reasonably agree this outside of court.?

                Sadly I still have a stubborn head on, and find myself unable to offer her the full deposit return due to the state she left the room in, and what it has (and will) cost to replace the carpet. Even though I know this may cost me more in the long run. Can someone please give me a reality check here - as I am under the (perhaps misguided impression) that because I have been honest, helpful, concise and clear that the courts will see my genuine mistake and this wont cost me big. But I think I need someone to shock me to the contrary.

                Thanks in advance....

                Comment


                  #9
                  Businesses don't normally get free legal advice.

                  Unless the tenant doesn't have a right to rent, not doing a right to rent check is not an offence. It works the other way round; doing a right to rent check to the reasonable limits of your competence, is a defence if she is an illegal.

                  My understanding is that the small claims track cannot be used for deposit penalties, although they are sometimes cases where it is accepted as an add on to a challenge to deposit deductions. On the other hand my interpretation is that this was an AST, and therefore that you are going to have to pay a penalty or, or close to three times the deposit, and will have costs awarded against you, unless you offer that much.

                  If you took money from the tenant, you are a professional landlord, in the eyes of the law.

                  How old were the carpets? They may well be deemed end of life and of no value.

                  The implications of lacking the documents are, I think theoretical possibility of a criminal conviction, for the gas safety certificate, and otherwise that you cannot use the no fault eviction process.

                  I think the main penalty for wasting the court's time is that she may have to pay here own court fees, even if she wins. That's particularly true if she is awarded no more than you offered.

                  Comment


                    #10
                    Originally posted by maidmistake View Post
                    Update
                    Along with now sending the letter before action, she is also saying that I broke the law by not doing the following;
                    ' You must do a 'right to rent check'before they rent a home in England. This means the landlord must check the immigration status of anyone aged 18 or over who will be living with in the house. It is a CRIMINAL OFFENCE if you do not do this. The landlord must ask to see your passport or other official documents that prove your immigration status. They must take copies of the documents and keep the copies safe.
                    You failed to do this.
                    2. At the start of your tenancy the landlord must provide:
                    · an Energy Performance Certificatefor the home
                    · a gas safety certificate (if the home has gas appliances)
                    · a copy of the latest government guide: How to rent - if you have an assured shorthold tenancy that started or was renewed on or after 1 October 2015


                    What are the implications of the above?
                    Bupkis.

                    It is a criminal offence and also liability for a civil penalty to let to someone without the right to rent. It is not an offence not to conduct a right to rent check. Conducting a right to rent check merely provide a landlord with a statutory defence in case they've let out to someone without a right to rent. You can ask here whether she is claiming she have been renting when she doesn't have the right to.

                    A letting of a room within a house does not constitute a rental of a building, so no EPC of the room is required. Debatable in terms of legislation around AST from October 2015, but the penalty is no valid section 21 notice which is irrelevant here.

                    If you're arguing lodger not AST, then How to Rent is irrelevant. Penalty for breach is again no s21 only anyway.

                    GSC, yes. But with the tenancy/licence over, realistically the most you get is a ticking off from the HSE "don't do it again".

                    Now I have the letter before action, going down the Small Claims Court route, for the 3 x compensation (her words), and she says, as it is small claims I cannot recover my legal fee's.
                    Well yes, but the reverse is also true. She wouldn't be able to recover anything beyond fixed cost such as the cost of the court claim issue fee itself.

                    I am not a professional landlord, and with regards to the 'seeking legal advice' can't afford £200/hr quoted by a solicitor
                    I bet the claim against you is more than that right?
                    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.

                    I do not answer questions through private messages which should be posted publicly on the forum.

                    Comment


                      #11
                      Also, if it is found that it is an AST, bogus licences are a very common tactic amongst rogue landlords, so you will have instantly lost much of the court's sympathy. Also, if leaving belongings in a property created the conditions for a licence, all the rogue HMO landlords would be doing that.

                      Comment


                        #12
                        Originally posted by leaseholder64 View Post
                        My understanding is that the small claims track cannot be used for deposit penalties, although they are sometimes cases where it is accepted as an add on to a challenge to deposit deductions.
                        Well yes, but when defending a claim you'll probably lose I'll take the cost consequence of a small claim than a Part 8 track unassigned / default multi-track.
                        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.

                        I do not answer questions through private messages which should be posted publicly on the forum.

                        Comment


                          #13
                          Whether the occupant was a lodger or a tenant is going to be determined by the facts of the case.
                          It's not about whether what you rented was your residence or not, it's about exclusive possession.
                          If someone has exclusive possession of a dwelling house, pays rent for a definable term they're likely to be a tenant.

                          If they were a tenant (and from what you've said, I'd say they probably were), the deposit needs protecting and you didn't do it.
                          So the tenant has every right to take you to court.
                          Because you have declined to return their money, they have a right to sue you for that and ask the court to impose the penalty, and they can use the cheap Money Claims Online track because there's money owed.

                          More to the point, the more you hack off the tenant, the more chance there is that they'll really go for it - which would cost a small fortune in legal fees.

                          What I suggest that you do is return the tenant's money in full.
                          That makes the tenant's claim more difficult, because then they're only claiming the penalty, and that's harder to do.
                          Given the complexity, I doubt a no win no fee firm would take on the case.

                          You made an honest mistake and your unreasonable tenant is going to win, and you lose.
                          But the more your fight, the more you're likely to lose.
                          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


                            #14
                            The occupation agreement doesn't somehow (normally foolishly) claim that it's not an assured shorthold tenancy does it? If it does, it would normally be bad but in this case it'll mean no deposit protection requirement even if it were a tenancy.

                            Originally posted by jpkeates View Post
                            What I suggest that you do is return the tenant's money in full.
                            That makes the tenant's claim more difficult, because then they're only claiming the penalty, and that's harder to do.
                            Given the complexity, I doubt a no win no fee firm would take on the case.
                            Harder, not impossible. With a determined former tenant, the landlord would just be inviting a Part 8 claim with all the extra cost that goes with it.
                            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.

                            I do not answer questions through private messages which should be posted publicly on the forum.

                            Comment


                              #15
                              Originally posted by KTC View Post
                              Harder, not impossible. With a determined former tenant, the landlord would just be inviting a Part 8 claim with all the extra cost that goes with it.
                              I agree, but the initial cost and complexity of the part 8 claim would put a lot of people off (me for instance!).
                              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

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