Is my L evicting me illegally?

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  • Is my L evicting me illegally?

    Hello

    I am currently in dispute with my former landlady and would appreciate any advice that you feel you can offer.

    In September last year while I was working away from home at the opposite end of the country (England – I know it makes a difference legally) I responded to an advert for accommodation. It was placed by a woman who ran her own business and who had recently bought a three bedroom house. She had converted the open plan lounge/dining room into an office and one of the bedrooms into a lounge and was looking to rent the upstairs out. The third bedroom housed the server for the office downstairs and was almost always locked although I did see into it once when I moved in. The kitchen and bathroom were shared.

    We signed an agreement and I moved in. It very quickly became clear that things were not going to work out due to her obsessive requirements over cleanliness. Things eventually came to a head after two weeks when I received this e-mail;
    I am giving you 1 months notice from today 18th Sept to vacate <the premises>, if you wish to leave earlier then let me know.

    This was followed by a few more e-mails where she repeatedly complained about "disgusting" and "filthy" marks like the faint coffee stain on the kitchen work top (I don't drink coffee, she does) that she ordered me to clean.

    Then on Sunday 5th October I got this
    You have continually ignored my requests for keeping the kitchen and bathroom areas clean, therefore, you have become a nuisance to me the owner.

    I am informing you that your items and personal belongings have been removed, they are bagged and boxed and will be kept safe and available for collection on Monday.

    After 5.30pm they will be placed outside, in front of the garage. (some of the food you have in the cupboard is rotten and stale, I have put this in a plastic carrier bag - items in the fridge will remain there until 5.30pm).

    Also, in accordance with the obligations you have as a sharer, you will pay for damages etc. You neglected to inform me that you broke the Coffee Percolator - this will be replaced and charged to you. (You may have the broken one)

    You will pay all costs incurred for cleaning the bathroom and kitchen again, also your bedroom. (£14 was paid to the cleaner for 2 hours previously and it will be paid again, totalling a £28 charge to you)

    I will also retain £100 until the safe return of my back door key.

    Deductions will be taken from the over payment you made for rent this month and I will forward a cheque for any monies owed to you in due course along with costings/deductions.

    I will send you a cheque for the deposit of £550 on Monday.


    I was unable to get there before the 5.30pm deadline. When I arrived at around ten o’clock my belongings were outside

    I originally claimed £8k+ for illegal eviction on the basis that the agreement is an AST but, because of the doubt over whether it is or not, and the fear of the costs going via the fast track, I changed it to £4265.73. This is the amount that I claimed at the small claims court via money claim online and it is in relation to this that I have my first question.

    I recently noticed via the money claim on line web site that a defence had been filed so I rang to ask for a copy of the defence and was told it would arrive in a couple of days. When it didn’t I rang up again and was told that there was a backlog and they couldn’t tell me when it would go out. I was also told that I had until 12th February to return the allocation questionnaire, which I also haven’t received. After being pressed they said that they couldn’t guarantee to get a copy of the defence to me before the deadline for the allocation questionnaire.

    My questions are; does it matter if I don’t see the defence before I complete the allocation questionnaire? If so, how do I prevent the judge from striking my claim out for a failure to complete the questionnaire in time?

    Obviously, in the absence of a copy of the defence I cannot know exactly what its going to say but I am fairly confident that she will claim that she lives at the house even though its completely untrue. (I say this because she always puts the address of the house at the top of letters rather than her home address) This brings me to my next question: If she had been resident would it affect my claim in any way and, if it would, will it be down to her to prove that she does live there or me to prove that she doesn’t?

    I’d also be grateful for any advice those of you more experienced than me could give me about how I should play this in court.

    Below is the text of the agreement, which I’ve been told is definitely an AST (from my first very expensive solicitor) is definitely not an AST (from my current, not quite so expensive solicitor) and that its borderline (from a barrister acquaintance of my wife).

    Thanks in advance

    Andy

    House & Flat Share Agreement


    Section 1 - The Parties

    The Owner:

    Dodgy Landlady


    The Sharer:

    Bedlington83

    Section 2— The Premises

    Address Of Premises to Let:

    <the premises>

    The Rental Period Shall Commence on the: 1st Sept 2008

    The Deposit is: £550.00

    The rent amount is £550.00

    The Rent is payable in advance on the 1st of each month

    The agreement shall end on the 28th February 2009


    Section 3- Terms and Conditions

    The Sharers Obligations Are:

    1. Rent, to pay the rent on the appointed day.
    2. Deposit, to pay the deposit as requested for security for any loss or damage to the premises or contents.
    3. To pay interest at a rate of 2% above base rate upon any rent which is 7 days late, whether formally demanded or not.
    4. The sharer is to be allowed, in conjunction with the occupation of the room to use the facilities and common parts of the property, as may be at the property.
    5. Not to do or permit anything to be done which might make void or voidable the insurance of the owner, or occasion an increase in the premium. Any increase in the premium due to the sharer’s actions may be charged directly against them.
    6. Not to carry on any profession, trade or business on or from the premises.
    7. Not to assign, sublet, charge or part with or share possession or occupation of the room or any other part of the property.
    8. Not to keep or do anything on the premises, which might cause a nuisance to either the owner, any other occupier or any neighbours. The sharer is responsible for his or her guests.
    9. Not to have any drugs, or other illegal items on the premises other than over the counter drugs and drugs prescribed by a medical practitioner.
    10. Not to keep pets at the premises without the consent of the owner.
    11. Repairs, to keep the premises in good repair, and to pay for the replacement value of any damage done, either to the property or contents. Fair wear and tear excepted.
    12. To Report to the owner and damage to the property or contents.
    13. Not to make any alterations, or carry out any decorations without the prior written consent of the owner.
    14. To allow the owner, or any duly authorised agent with the owner’s permission, after giving at least 24 hours prior written notice, to enter and inspect all areas of the premises, including the sharer’s room, for the purpose of inspection, repair and the taking of meter readings. (In cases of real emergency the requirement of notice need not be complied with.)
    15. To pay to the owner all charges, costs and expenses incurred by the owner at any time during the let arising as a result of a breach of any of the terms of this agreement.
    16. To leave the property at the end of the let in good repair and condition, upon the date so appointed and yield up all keys to doors, windows and any other items, for which the owner will provide the sharer with a receipt.
    17. To pay for any cleaning costs and removal or rubbish that may be necessary after the let has come to an end in order for the owner to re-let the premises.

  • #2
    As a lodger you don't hold an AST (or that is my understanding) infact you have very few rights! I'm not a residential expert, but as far as I understand you cannot be in an AST
    [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

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    • #3
      I thought you could only be a lodger if the owner lives in the house - if she doesn't (and you can prove it) things may change?
      Unshackled by the chains of idle vanity, A modest manatee, that's me

      Comment


      • #4
        What the agreement says is nearly irrelevant. Its what happens in practice that counts.

        My understanding is that for the tenant to be an excluded occupier (eg lodger); the LL has to be resident and sharing accomodation.

        Normally I would expect the LL to be living there (sleeping and eating) and it to be their number 1 home.

        If they are not there for more than 50% of the total time day or night, do not eat and sleep there, then I doubt if they are resident. Do you have another 'home' address for her?

        Have you tried 'Shelter' helpline?

        You need a solicitor who thinks it is an AST!! Does he have much knowledge of Landlord and tenant law? Have they not taken advice from a barrister?

        You could try the landlordlaw.co.uk website; you can ask a question which MIGHT be answered, but you may need to join to get legal advice on the forum.
        All posts in good faith, but do not rely on them

        * * * * * ** * * * * * * * * * * * *

        You can search the forums here:

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        • #5
          Originally posted by islandgirl View Post
          I thought you could only be a lodger if the owner lives in the house - if she doesn't (and you can prove it) things may change?
          Yes. If L is resident, OP is only a lodger. If L is not resident, OP is a tenant- with security of tenure.
          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
          4. *- Contact info: click on my name (blue-highlight link).

          Comment


          • #6
            Sorry i presumed that L actually lived there. Sorry if I have presumed wrong.
            [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

            Comment


            • #7
              Originally posted by Bel View Post
              What the agreement says is nearly irrelevant.
              Why do you say this? Its a legally binding agreement.

              Originally posted by Bel View Post
              If they are not there for more than 50% of the total time day or night, do not eat and sleep there, then I doubt if they are resident. Do you have another 'home' address for her?
              Yes, and its her real home address that the court claim was delivered to

              Comment


              • #8
                Originally posted by MrJohnnyB View Post
                As a lodger you don't hold an AST (or that is my understanding) infact you have very few rights! I'm not a residential expert, but as far as I understand you cannot be in an AST
                My first solicitor said it was definitely an AST because it had all the elements of an AST; A fixed period, rent, and exclusive possession (by virtue of clause 14).

                Comment


                • #9
                  Originally posted by jeffrey View Post
                  Yes. If L is resident, OP is only a lodger. If L is not resident, OP is a tenant- with security of tenure.
                  Thanks for this. She definitely wasn't resident but my difficulty is in trying to prove that she wasn't. She will probably lie and say that she was so that she can get out of paying me. Then it'll be my word against hers

                  Comment


                  • #10
                    Have you got a copy of your Council Tax bill? Other Utilities in your name?
                    I offer no guarantee that anything I say is correct. wysiwyg

                    Comment


                    • #11
                      Originally posted by jta View Post
                      Have you got a copy of your Council Tax bill? Other Utilities in your name?
                      I was only there for five or six weeks so no, I don't.

                      Comment


                      • #12
                        Originally posted by bedlington83 View Post
                        I was only there for five or six weeks so no, I don't.
                        OK: so what evidence do you hold to show that:
                        a. L was not there; and
                        b. you were there?
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                        • #13
                          Originally posted by jeffrey View Post
                          OK: so what evidence do you hold to show that:
                          a. L was not there; and
                          b. you were there?
                          Unfortunately I can't think of anything substantial. I wasn't there very long. My previous solicitor rang her to tell her that what she was proposing was both a civil and criminal offence and her non-residence was also mentioned. It might also be mentioned in the letter that I subsequently got from the solicitor. I'll try and find it.

                          I can prove that I was there easily enough - I have voluminous correspondence where she complains about the state that I've left the property. You know, disgusting things like failing to wash the underside of the washing up bowl and not standing it on its side to dry. That sort of thing. If I wasn't there I couldn't have done the things that she complains about.

                          In the correspondence (which I tried to post but there's too much of it) she doesn't gainsay my claim that the property is her office but my home. Its pretty weak I know but how can you prove that something didn't happen?

                          Comment


                          • #14
                            A lot hinges on you proving that L was not a resident L. The onus of proof's on you, not on her.
                            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                            4. *- Contact info: click on my name (blue-highlight link).

                            Comment


                            • #15
                              Originally posted by bedlington83 View Post
                              Why do you say this? Its a legally binding agreement.

                              Sorry to confuse the issue.

                              Just because your written paper doesn't say that it is an assured shorthold tenancy, doesn't mean that it can't be an AST. A court will look at your circumstances to decide what tenancy you have, and therefore what rights you have.

                              Many LL's have tried to take advantage by putting unfair terms and denying tenants their rights in written agreements; that is why circumstance is always looked at.
                              All posts in good faith, but do not rely on them

                              * * * * * ** * * * * * * * * * * * *

                              You can search the forums here:

                              Comment

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