nightmare for all

[lushery]

I have lived for the last 7.5 years in a 3 bed professional flatshare in london. We signed a joint tenancy initially when we moved in. In 2005, the other 2 people moved, new people came and a new joint tenancy was drawn up and signed. This was the last thing i or anybody else signed.

Since then, there have been many people come and go in the other 2 bedrooms whilst i have always remained. We have had few if any problems and the rooms have always been full. The rent is really reasonable. There has been a policy of 1 months notice between flatmates, or the understanding that if not adhered to deposit for leaving flatmate would be lost.

The current 2 (X+Y)flatmates have both been here for over 3 years and paytheir rent directly to the landlord - the dates we pay are all different (8th, 12th [me], 21st).

7 days ago (21st/10), X says he is leaving flat and gives notice to me, Y and landlord. Y loses it and says she will not stay in flat a day longer and rings landlord saying so. Landlord comes last sat, saying we all go or we all stay and that he is not getting involved in drama and just wants his flat back. he has not put the rent up for 8 years and comments that he intends to increase it significantly whatever happens.

X and Y state and scream in turn their positions as above and leave the meeting. i am disabled, have a carer (Z) who was present and receive HB for the rent, although my income is easily enough to cover rent HB or not. We calm the LL down and he says if i sign a new lease and cover any rent missing for Y i can stay. He is cool with X because he has stuck to the month notice agreement. My carer says she can take one room and we just need to find someone for the 3rd room. He says it will all be through a new agent and he will think over weekend and let me know.



LL phones on 24th and quotes new rental figure, i tell him i will consider it and let know him in no more than 24hours, which I do.

But despite her drama, Y has not gone. Her room is locked, she has keys and comes and goes as and when she feels. I tell the LL on the 25th and he is furious, telling me he will tell her she is out as she was so insistent. however nothing has changed

We re (me and Z) now being pressured by an agent, insisting we commit to new lease asap and be ready to have a new date for all the new rent and deposit paid by the 12 th/11 (despite the agreement being the 21st/11). The references and contract are a dramatic turnaround to the restrictive side from the last 7.5 years and are for the first time making it hard to find a new tenant quickly. I am seeing legal aid on tuesday

I am not accusing anyone apart from Y of doing anything out and out wrong but I am also aware that if i walk, like X and Y are, the council will class me as voluntary homeless and I have been advised by them to await a section 21 et al. I am aware that i would be responsible for all the rent ( a significant amount, 3k, including mine). Being disabled and having HB, despite plenty of savings, is proving too much of an obstacle to find somewhere else mostly from agents not able to do satiate their checks ( violin, boohoo, etc).

If LL section 21s me, can he at any point then section 13 me as well, so he basically doesn t have to wait 2 months and just price me out? I am frantic with this and franky do not have a clue what to do

tx for any advice

any advice

[westminster]

There has been a policy of 1 months notice between flatmates, or the understanding that if not adhered to deposit for leaving flatmate would be lost.

Who did X+Y pay their deposits to when they moved in? If it was to the LL, has he protected these deposits?

The current 2 (X+Y)flatmates have both been here for over 3 years and paytheir rent directly to the landlord - the dates we pay are all different (8th, 12th [me], 21st).

This indicates that, arguably, the joint tenancy which you and two others (A & B) signed in 2005 has at some point been surrendered, and the situation now is that you, X & Y, each have individual tenancies for your room, with shared communal areas.

Alternatively, you three may be joint tenants; the fact that you pay rent on different dates suggests otherwise, but it may be the case that you all (inc. LL) have an understanding that this is a joint tenancy? Do you?

Can you tell us, when either A or B left, was it after the fixed term had expired, and did either of them serve notice to quit to the LL? (If the answer is yes, this would help to clarify the situation).

We re now being pressured by an agent, insisting we commit to new lease asap and be ready to have a new date for all the new rent and deposit paid by the 12 th/11 (despite the agreement being the 21st/11).

LL/agent cannot force anyone to sign a new contract (or to pay any further deposit).

If LL section 21s me, can he at any point then section 13 me as well, so he basically doesn t have to wait 2 months and just price me out? I am frantic with this and franky do not have a clue what to do

Yes, the LL can serve a s.13 as well as a s.21. However, this is complicated by the fact that it's not clear who the legal tenant actually is.

Given the uncertainty, you could defend a s.21 application, or s.13 notice, by arguing the opposite - e.g. if LL served notice on you, as an individual, you could claim that the notice is defective because you have a joint tenancy, or vice versa. A court (e.g. if LL applied for possession) would have to establish who the legal tenant is (out of the three possible scenarios), in order to establish whether or not the s.21 was valid.

In addition, if a deposit is paid in respect of an assured shorthold tenancy (on or after 6th April 2007) then LL is legally obliged to protect it; he cannot serve a s.21 notice on the T before he has done so (and provided the T with the prescribed information). This is only relevant if X and/or Y paid their deposit to the LL.

Having said all that, if you want to remain in the property, and don't want to be evicted, then ultimately you'll have to agree a higher rent, because ultimately, the LL, even if he messes up notices the first time round, will eventually get it right.

[lushery]

many tx for yr detailed response westminster (camden here...)

Who did X+Y pay their deposits to when they moved in? If it was to the LL, has he protected these deposits?


As far as i am aware, the landlord has always kept the initial deposit and tenants incoming have paid their deposits to tenants outgoing. However, this is not 100% because of the communication breakdown in the flat but was certainly true in the past.




Alternatively, you three may be joint tenants; the fact that you pay rent on different dates suggests otherwise, but it may be the case that you all (inc. LL) have an understanding that this is a joint tenancy? Do you?

This is very interesting and sounds too good to be true
Well, we had the non signed month agreement of notification between tenants to move on the premise there was no rent missing ie. joint tenancy mentality. However on reflection, the rooms have had days or maybe even a week or two with a person missing in the past (hence the differing dates for rent due) and the landlord has taken the hit. He actually did once find somebody himself to move in when it was the week or two situation but that fell thru, luckily, as a friend became available to take it. Surely the fact he is willing to let Y (drama) just leave at will and give her her deposit (A's, if you like) as he 'doesn t want to rip anyone off' signifies some acknowledgement of seperate as opposed to joint liabilty? He has taken rent for different rooms, from different individual people, on different days for years. My issue with him is that he is dismantling the arrangements around me and hectoring me on the phone or by proxy thru his agent into signing my current rights away.

I cannot imagine him serving me a s21 as individual tenant because surely that would mean I could just pay my 550 pcm x2 (assuming no s13) and go as genuine homeless. Also all the ambiguity regarding the contract will be a dream for camden council who want me to essentially have him s21/baliff me out with me being potentially liable for the whole flats rent as these months tick by

I of course accept the right of the LL to increase the rent and have not been obstructive in the slightest, bar 24 hours to consider it. I do not want to do anybody any wrong (except maybe Y) but feel that Camden Council are essentially intimidating me ('you will be like someone who gets off train from another part of the country and says I am homeless if you walk - we won't help) into a potentially bankrupting dispute with the landlord.

It goes without saying I would just move if I could and me and Z are looking. Sorry if these sounds stress/rantish, it s hard to keep it real

[lushery]

ok after much searching around i have found something that could be may help. When I became ill I had to stop working. I could not find any lease (then or now) in my documents in order to facilitate an application for HB. I emailed LL and asked for a brief outline of what I pay and what I get for it in the form of a signed letter

I got it.

It says :
LLnumber and street
LLArea
LLPostcode

5th Jan 2010

To Whoever it may concern,
We,LL and wife of LLs address confirm that Lushery[sic] has been a tenant of Lusherys address since **/**/04. Lushery pays £545 pcm with no bills included in this figure for sole use of one bed(room) and shared kitchen and bathroom facilities. The payment should reach us by the 12th of each month

Yours Faithfully

LLs wife LL
(signed) (signed)


The council have told me that they consider me to be living in a self contained property on the basis of this but then they would because it affects LHA in their favour (what do you mean LHA is too small, look Lushery only pays 545 pcm for his own place)


any help you think?

[westminster]

I will reply in more detail in a while, (popping out to corner shop), but meanwhile could you answer my question about whether A or B served notice to quit after the fixed term of the 2005 contract expired?

[lushery]

I do not have the lease anymore (hence the need for the letter above) so do not know the length of 'fixed term'.

well A turned out to be a dead loss and moved well before the fixed term was over, perhaps after as little as 2 months. B stayed two years and although I am not certain, would have told the LL she was going. B was an excellent tenant.
However, it depends what is meant by served notice to quit (sorry for my naivety) - I very much doubt letters were written.

I gues the simple answer to yr post is I am not too sure

[westminster]

5th Jan 2010

To Whoever it may concern,
We,LL and wife of LLs address confirm that Lushery[sic] has been a tenant of Lusherys address since **/**/04. Lushery pays £545 pcm with no bills included in this figure for sole use of one bed(room) and shared kitchen and bathroom facilities. The payment should reach us by the 12th of each month

Yours Faithfully

LLs wife LL
(signed) (signed)

.....


any help you think?

Yes, I think it definitely helps. It is very good evidence that the LL regards you as having an individual tenancy for your room. Do not lose this piece of paper!

[westminster]

Alternatively, you three may be joint tenants; the fact that you pay rent on different dates suggests otherwise, but it may be the case that you all (inc. LL) have an understanding that this is a joint tenancy? Do you?

This is very interesting and sounds too good to be true
Well, we had the non signed month agreement of notification between tenants to move on the premise there was no rent missing ie. joint tenancy mentality. However on reflection, the rooms have had days or maybe even a week or two with a person missing in the past (hence the differing dates for rent due) and the landlord has taken the hit. He actually did once find somebody himself to move in when it was the week or two situation but that fell thru, luckily, as a friend became available to take it. Surely the fact he is willing to let Y (drama) just leave at will and give her her deposit (A's, if you like) as he 'doesn t want to rip anyone off' signifies some acknowledgement of seperate as opposed to joint liabilty? He has taken rent for different rooms, from different individual people, on different days for years. My issue with him is that he is dismantling the arrangements around me and hectoring me on the phone or by proxy thru his agent into signing my current rights away.

On balance, it does sound as if you, X and Y have separate, individual tenancies (and that the 2005 joint tenancy is no longer in place).

As for 'rights'...currently, you have either an individual periodic assured shorthold tenancy or (less likely) a joint AST with X & Y as the other joint tenants; either way you have the protection from eviction afforded to an AST tenant (LL can only evict you by serving a valid s.21 or s.8 notice, applying for possession, and getting a bailiff to execute the possession order - the tenancy ends on the date the bailiff executes the order).

If you sign a new tenancy contract, you won't lose this protection. The rent may be higher, but if you don't sign a new contract, LL may serve notice to increase the rent under s.13. So there's no way round it essentially, and you couldn't successfully challenge a s.13 unless the increase was excessive/unfair. (After 8 years without an increase, it's sort of unlikely to be the case...)

There is a difference, though, in terms of individual v joint tenancy, and the respective liabilities. More on this below.

I cannot imagine him serving me a s21 as individual tenant because surely that would mean I could just pay my 550 pcm x2 (assuming no s13) and go as genuine homeless.

No, it wouldn't. A s.21 notice is not a notice to quit; it does not end the tenancy nor oblige you to vacate. It merely entitles the LL to apply for a possession order after the notice expires. If you left at expiry of the s.21 notice, you would be making yourself voluntarily homeless (and you'd also be liable for rent in lieu of notice, if you hadn't served notice to quit).

Also all the ambiguity regarding the contract will be a dream for camden council who want me to essentially have him s21/baliff me out with me being potentially liable for the whole flats rent as these months tick by.

If you have an individual AST, you are only liable for your rent. If there is a joint tenancy, then all three of you are jointly and individually liable for all of the rent, not just you.

Based on what you've told me, I am fairly sure that you could successfully argue that you have an individual AST for your room. You have the evidence of the letter from the LL, as well as the fact that you, X & Y all moved in at different times and pay rent on different dates. That being the case, you're only liable for your £550pcm.

But it's still worth considering the second, trickier scenario whereby it's a joint tenancy. It would appear that X has served notice on the LL. Because the tenancy is periodic, his notice ends the whole tenancy (for you, X and Y) at notice expiry. If you and/or Y don't move out at notice expiry, the LL has a choice; he can either treat you as trespassers and apply for a possession order, OR he can grant you a new tenancy (and this doesn't have to be a written contract; the new tenancy could be created simply by the fact that you continue to pay rent, and LL gives no indication that he regards you as a trespasser).

Also note that, whether you have an individual or joint tenancy, the LL cannot grant a new tenancy for a room or for the whole flat, if there is a tenancy or tenancies already in place. These would have to be formally surrendered first. Is this new agent a member of a professional body such as ARLA? Because if so there is slightly more chance that they might understand the legalities involved (albeit agents aren't generally noted for their knowledge of landlord and tenant law).

However, it's all very well knowing your rights etc, but the fact is that the LL can evict an AST tenant fairly easily, so if you want to stay there, you'll need to come to an amicable arrangement with the LL, and obviously, being confrontational or aggressively asserting your rights isn't the way to achieve this.

You seem to be saying that LL/agent is trying to pressure you into agreeing a new joint tenancy contract? I would say it's to your advantage that Y is being uncooperative, because LL cannot grant a tenancy to you & Z for the whole flat, when Y still has a tenancy (whether individual or joint) in place. So this is something that it could be worth pointing out to the agent, in a non-confrontational sort of way...

Meanwhile, I'd assume that you and Z would prefer to have individual tenancies for a room each? If so, why not proceed by saying you and Z are willing to agree to two individual tenancies at £X rent? (pitch your side as that you're willing to renew your individual tenancy, which is what you believe you have etc) But that LL will obviously have to deal with Y as a separate issue, for aforementioned reasons, and obviously you can't speak on behalf of Y etc. LL may be willing to settle for at least part of what he'd like in an ideal world, and it's even possible that he'll realize he has to deal with Y first...

I think there is a certain amount of room for optimism, given that LL has been okay with individual comings and goings thus far.

I also think that, in spite of the somewhat inevitable rent increase, it would be to your advantage to have your tenancy formalized by a written contract for your room (and just your room), so that you know exactly where you stand.

[lushery]

thank you so much for that westminster, sincerly.

i am having a think to let it all sink in but yes, it is only a new joint tenancy being offered. as said i don t want to cross anyone and staying given my personal circumstances would be easiest.

a great deal of gratitude, you did me a great service there

[westminster]

i am having a think to let it all sink in

I appreciate that it's a lot to take in in one go. So do have a think and come back tomorrow with any further questions you have.