Sub tenants with no contract - can we be evicted?

[privatetenant]

I have just moved into a flatshare and gave the outgoing tenant their share of the deposit (one month's rent) as did my two flatmates who moved in recently also. In my last flatshare this is how it worked and the deposit that was with DPS was transferred from my name to the name of the incoming tenant who also replaced me on the tenancy agreement. However in that flat the tenancy and deposit was in the name of all three tenants. In this flat the tenancy and the deposit is in the name of one of the tenants who has moved out and the agency is saying they will only release the deposit to her and are asking us to pay them a deposit. Since we have already paid a month's rent to the outgoing tenants we don't want to pay this again to the landlord who is preparing to release the whole deposit back to the tenant who has left even though she has illegally sublet to us and is still liable for the rent. She has also moved to Spain leaving a load of unpaid bills behind so obviously there is no way we would ever get this money back from her. We have not signed anything yet although we would be happy to if there was a way of transferring the deposit held to us. We have been advised by CAB that if we don't pay February's rent we can recoup our money and the landlord can keep the deposit of the previous tenant as rent arrears. Then we can start afresh from March and sign a new agreement. However if the agency (they are managing agents so we haven't spoken to the landlord) doesn't agree and we don't pay the rent for February where do we stand in terms of eviction? We don't have any contract with the landlord but he does have a contract with the tenant who moved out. Can they change the locks and keep our stuff?

[thesaint]

Complicated situation made even harder by the lack of paragraphs.

[westminster]

WITH PARAGRAPHS

I have just moved into a flatshare and gave the outgoing tenant their share of the deposit (one month's rent) as did my two flatmates who moved in recently also.

In my last flatshare this is how it worked and the deposit that was with DPS was transferred from my name to the name of the incoming tenant who also replaced me on the tenancy agreement. However in that flat the tenancy and deposit was in the name of all three tenants.

In this flat the tenancy and the deposit is in the name of one of the tenants who has moved out and the agency is saying they will only release the deposit to her and are asking us to pay them a deposit.

Since we have already paid a month's rent to the outgoing tenants we don't want to pay this again to the landlord who is preparing to release the whole deposit back to the tenant who has left even though she has illegally sublet to us and is still liable for the rent.

She has also moved to Spain leaving a load of unpaid bills behind so obviously there is no way we would ever get this money back from her.

We have not signed anything yet although we would be happy to if there was a way of transferring the deposit held to us.

We have been advised by CAB that if we don't pay February's rent we can recoup our money and the landlord can keep the deposit of the previous tenant as rent arrears. Then we can start afresh from March and sign a new agreement.

However if the agency (they are managing agents so we haven't spoken to the landlord) doesn't agree and we don't pay the rent for February where do we stand in terms of eviction?

We don't have any contract with the landlord but he does have a contract with the tenant who moved out. Can they change the locks and keep our stuff?

* * * *
There would appear to be considerable confusion as to whether you are a subtenant (with the tenant as your LL) or replacing an outgoing tenant (with the owner-LL as your LL).

It would appear that you think you're a subtenant, but the agent and owner-LL think that the last tenancy has ended, or they wouldn't be giving the deposit back to the tenant.

If the last tenancy has indeed ended, then the rent and deposit should be paid to the owner-LL, not to the previous/outgoing T. It's possible that the previous/outgoing T conned you.

Before you and your friends moved in, how many people lived there, and was it a joint tenancy, or did they all have separate contracts for a room?

How many people live there now?

[privatetenant]

Thanks for the reply westminster! There are three of us and the idea was that we would replace the previous tenants and sign a new joint tenancy agreement with the landlord. We paid last month's rent to the agent and I paid the end of Dec rent to the outgoing tenant that was in my room. My two flatmates had already moved in.

Previously there were three tenants also but the agreement for the whole flat was in the name of one tenant. Presumably they all paid their own share of the rent to the agent as we do now. The previous tenant whose name is on the tenancy agreement (which I haven't seen but I believe is a fixed term contract that was due to end in the summer) told my flatmates when they moved in that the landlord was aware that we were moving in but he was not.

Obviously we were not aware that the deposit was in her name and could not be transferred to us. So although we have no contract we did pay rent to the agent (of the LL) and they do want us to pay a deposit and run reference checks and sign a new tenancy agreement. Which is reasonable, but we don't have the funds or the desire to pay a second deposit. Since she is still on the tenancy agreement isn't she still liable for the rent? Why would they give her the deposit back when we haven't signed a contract or given a deposit? I am baffled.

We suggested that they keep our last month's rent as a deposit and keep hers as rent arrears but they said this would be too difficult. Would it really be so difficult? They don't even have a new address for her.

As we don't have a contract, if we don't pay the rent fopr Feb, how much notice would they have to give us, in the worst case scenario that they don't agree with our plan: we don't pay Feb rent to recoup the deposit money we paid to the outgoing tenants and the LL keeps the old deposit as rent arrears. Then we sign a new contract starting March and pay rent and deposit to LL.

[westminster]

The whole situation is very messy, needless to say. The following is how I interpret the situation, but please bear in mind that I don't/can't know the full facts, so other interpretations are possible.

You say:

the idea was that we would replace the previous tenants and sign a new joint tenancy agreement with the landlord. We paid last month's rent to the agent

It would seem that the previous tenant (or tenants) has agreed, with the landlord, to surrender the tenancy. It seems that way because the previous occupiers have all moved out, you/your friends have moved in, you've paid rent to the owner-LL (via the agent), and the LL wants you to sign a new tenancy agreement. And the agent is planning to refund the previous T's deposit.

Again, I am guessing, but perhaps the previous T said she would find replacements as a condition of surrendering her tenancy. Then she found you/your friends. Unfortunately, you paid a 'deposit' to her - but it would seem that she's not your LL. I doubt you'll see this money again now she's moved to Spain.

The deposit held by the LL against the previous tenancy is refundable to the previous T, not you. It cannot be set against your rent, only against unpaid rent from the previous tenancy. (I somehow doubt the previous T told the LL it was okay to give you her deposit, and it was just a 'private arrangement' you thought you had with the T, which the LL didn't know anything about). In other words, when one tenancy ends and another begins, there's no 'merging' or 'overlap' of the two (or, rather, there shouldn't be), although in this case the lines drawn between the two are far from clear.

In future, never pay a 'deposit' to an outgoing T.

So although we have no contract we did pay rent to the agent (of the LL) and they do want us to pay a deposit and run reference checks and sign a new tenancy agreement.

The lack of a written contract doesn't mean that there's no contract. A short-term tenancy may be orally agreed. The fact that you have 1) agreed to pay rent to the LL, 2) moved in, means that a tenancy has been granted/created. You have an Assured Shorthold Tenancy, probably a joint one with the others, possibly periodic at the moment .

(So, it's slightly pointless for the agents to run reference checks after the event).

if we don't pay the rent for Feb, how much notice would they have to give us, in the worst case scenario that they don't agree with our plan: we don't pay Feb rent to recoup the deposit money we paid to the outgoing tenants and the LL keeps the old deposit as rent arrears. Then we sign a new contract starting March and pay rent and deposit to LL.

An AST tenant can only be lawfully evicted by the LL obtaining a court order for possession. The LL cannot obtain a possession order under s.21 Housing Act 1988 (the standard 'no fault' procedure) earlier than six months after the start of the tenancy (or earlier than expiry of a fixed term).

If you don't pay the rent, however, the LL may use an alternative procedure under s.8 HA 1988. The length of the notice on rent-related grounds is 14 days before the LL may apply to the court. If there is at least two months rent owing and unpaid then the court must make a possession order (but a T may also be evicted for less than that, at the court's discretion, though this is fairly unlikely - you'd still be ordered to pay the unpaid rent, though).

So, the worst case scenario is that you could be evicted under s.21, but not before six months from now, or, if you don't pay one or two months' rent, maybe 3 or 4 months from now. Court procedure can be slow.

If the LL changed the locks, as you previously asked, then he would be committing a criminal offence - unlawful eviction.

[privatetenant]

Thanks so much for this information and advice westminster, this is very helpful and makes sense. We'll have to speak to the agent and see if we can come to an agreement.

[westminster]

Let us know how you get on.