Deduction of deposit in case of subletting?

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    Deduction of deposit in case of subletting?

    Hello there,

    I am renting a flat from a landlord (3 bedroom flat). After one week I had signed the contract, the letting agency contacted me saying the would have become the managing agents, and that for any problems etc, I should have contacted them rather than the landlord.

    I sublet the 3 rooms with the informal (non written) consent of one of the agents, who asked me to provide her the details of the 3 subtenants and to keep her informed about new ones coming.
    One of the radiators in the house has never worked. The flat is in a building that also provides heating, included in the rent (which has always been paid on time -there are NO arrears). Another agent who is dealing with me for the maintenance (unfortunately not the one who showed me the place at the beginning and who also agreed with me subletting the bedrooms), after having sent many emails about the needed repair of the radiator, today sent me an email mentioning the breach of the lease for subletting, with the agency now wanting to deal with the subtenants directly and also mentioning the withdraw of £900 from my holding deposit.

    Since the property does not have any damage, is clean, rent was paid on time, I don't see why they should deduct any money from the deposit.

    Could you please give me your opinion?

    Thank you.

    #2
    Is subleting a breach of your tenancy agreement?
    What penalties (if any) does your tenancy agreement specify?
    Are you in the fixed term of your tenancy
    Do you also live in the property with your subtenants?

    They will help you get a ore specific answer, but essentially you have a valid tenancy. If you are in breach, or it has come to the end of the term, the landlord can seek possession & any tenants would become his tenants - but that would require a court possession order.

    With regard to costs, we don't know the full details, but any damage to the property caused by your tenants could be deducted from the deposit at the end of the tenancy. If there has been no financial loss for the landlord then there will be no valid reason for deductions.

    Comment


      #3
      Hi Snokerz,

      Thank you for your prompt reply.

      Here it's the clause about subletting on the tenancy agreement:

      Not to sublet, take in lodgers or paying guests without the landlord or his agent’s prior consent. (In order to avoid misunderstandings or disputes later, it is strongly recommended that the tenant obtain confirmation in writing of any such consent granted.) The landlord or his agent reserves the right to withdraw, for reasonable grounds and upon reasonable notice, any such consent previously given.


      I was wondering whether I should try to negotiate with them to keep the tenancy agreement, with the addition of the clause about subletting (in writing) and perhaps the condition that the maintenance and repair of the property are going to be undertaken by myself. What is your opinion about that?
      The tenancy agreement started in Nov 2012 and should have had a 2-year duration.

      Thank you,

      Ibiscus

      Comment


        #4
        Well you seem to have shot yourself in the foot wheh the tenancy agreement specifically says get consent in writing & you accepted verbal consent.

        As this is a residential property you can not take over the maintainance obligation - this is section 12 of the 1985 Landlord & Tenant Act
        Restriction on contracting out of s. 11.(1)A covenant or agreement, whether contained in a lease to which section 11 applies or in an agreement collateral to such a lease, is void in so far as it purports
        (a)to exclude or limit the obligations of the lessor or the immunities of the lessee under that section, or
        (b)to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of his enforcing or relying upon those obligations or immunities,
        unless the inclusion of the provision was authorised by the county court.
        At present, your breach of contract could lead to a notice to quit and it would then be up to the court to decide if your breach was sufficient to warrant terminating the contract.

        However, you seem keen on negotiating a solution to this. I would suggest you make contact with the landlord, explain the history as you have here & see what would encourage him to agree to the subletting.

        Comment


          #5
          I appreciate your advice, and probably best thing is indeed to contact my landlord directly.\

          Thank you again,

          Ibiscus

          Comment


            #6
            Originally posted by Snorkerz View Post
            Is subleting a breach of your tenancy agreement?
            What penalties (if any) does your tenancy agreement specify?
            Whatever the contract says or doesn't say about sub-letting, any clauses containing financial penalties for breach which are not a reasonable estimate of the actual loss due to the breach (which in this case is zero) will be void and unenforcable.

            Comment


              #7
              Originally posted by Snorkerz View Post
              Well you seem to have shot yourself in the foot wheh the tenancy agreement specifically says get consent in writing & you accepted verbal consent.

              As this is a residential property you can not take over the maintainance obligation - this is section 12 of the 1985 Landlord & Tenant Act


              .
              The op could, just under a different form of agreement.
              [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


                #8
                Originally posted by Snorkerz View Post
                As this is a residential property you can not take over the maintainance obligation - this is section 12 of the 1985 Landlord & Tenant Act
                I'm assuming Ibiscus is a non-resident LL and has granted exclusive possession of the rooms to her Ts.

                That being the case, Ibiscus is the landlord of her subtenants. Therefore she has repairing obligations under s.11 LTA 1985.

                Equally, Ibiscus' landlord (the leaseholder) has repairing obligations, too.

                And the freeholder of the block is Ibiscus' landlord's landlord. The freeholder will likely have some liability for the external /communal repairs including the communal heating system (albeit perhaps not the radiator in the flat).

                Comment


                  #9
                  Originally posted by Ibiscus View Post

                  Here it's the clause about subletting on the tenancy agreement:

                  Not to sublet, take in lodgers or paying guests without the landlord or his agent’s prior consent. (In order to avoid misunderstandings or disputes later, it is strongly recommended that the tenant obtain confirmation in writing of any such consent granted.) The landlord or his agent reserves the right to withdraw, for reasonable grounds and upon reasonable notice, any such consent previously given.
                  Originally posted by Snorkerz View Post
                  Well you seem to have shot yourself in the foot wheh the tenancy agreement specifically says get consent in writing & you accepted verbal consent.
                  The clause does not specify that consent must be obtained in writing. It merely recommends it to avoid misunderstandings.

                  Ibiscus may have written/email evidence of the agreement with the agent (if she is now denying it). For example, the agent asked Ibiscus to provide details of the subtenants, no doubt given in writing.

                  The consent, once given, cannot be withdrawn except on reasonable grounds.

                  Mind you, it's possible that the long-lease of the flat (or the leaseholder's mortgage conditions) may prohibit the current set-up.

                  Comment


                    #10
                    I think the point can also be made that whether consent has been given or not, if the landlord or his agent has knowledge of the sub-letting and after acquiring the knowledge rent is demanded or accepted, any breach will have been waived.

                    Comment


                      #11
                      Originally posted by Lawcruncher View Post
                      I think the point can also be made that whether consent has been given or not, if the landlord or his agent has knowledge of the sub-letting and after acquiring the knowledge rent is demanded or accepted, any breach will have been waived.
                      Do you mean that subletting is not a continuing breach?

                      Comment


                        #12
                        Originally posted by jjlandlord View Post
                        Do you mean that subletting is not a continuing breach?
                        It is a one off breach. Of course each new subletting is a new breach.

                        Comment


                          #13
                          Hello everybody,
                          Here it is an update of the current situation: I have just spoken to the agent and she told me that that do not want to give back the unused rent (nearly one month, since my rent was paid every 3rd of the month) or the deposit (six weeks' rent).
                          We are speaking of around £5500 they want to keep for themselves!!
                          Here it is what the writes:

                          To clarify the rent paid is not returnable and as you are in breach of your tenancy and have collected another deposit this is not returnable either. Please refer to clause 4.2 of the tenancy agreement.

                          The 4.2 clause says that the security deposit will be dealt with the fair costs incurred in compensating the landlord for, or for rectifying or remedying any meaningful breach by the tenant of his obligations under this agreement, including those relating to the cleaning of the premises, its fixtures and fittings.

                          As specified earlier, the property did not have any damage, as it is actually kept in excellent condition, and rent was paid on time every month.

                          Could you please advise me on how I should proceed? I would also like to point out that I pay VAT on my sublettings and have an accountant that take care of my tax returns.

                          I look forward to hearing from you,

                          Natali'

                          Comment


                            #14
                            What is this 'unused rent' you're talking about?
                            And why are you paying VAT on you subletting income?

                            Comment


                              #15
                              Why are you talking as if your tenancy has ended? Why would you expect the agent to refund rent to you?

                              The tenancy agreement started in Nov 2012 and should have had a 2-year duration.
                              Should have?

                              Comment

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