Should my deposit have been protected?

[Bouine]

Hello,

I have a bit of a complicated situation. I am subletting a room from a mesne tenant that rented the whole property.

We signed an Assured Shorthold Tenancy Agreement which I now understand is unusual as the mesne tenant has also been living in the property and ASTs are usually in place for exclusive use of the whole property. I believe this was a simple mistake on her part.

In the contract it states "If there is a dispute about the Deposit at the end of the Tenancy, either the Landlord or the Tenant may refer the matter to the Tenancy Deposit Scheme for adjudication once 10 calendar days have passed.". This leads me to assume that as per the terms of our contract she should have registered my deposit with the DPS.

I am certain that she has not done so. I am concerned that the mesne tenant does not plan on repaying my deposit as she will be leaving the country before the tenancy ends and therefore I will not have any recourse.

My question is - what are the ramifications of withholding my last month's rent as protection for my deposit? And, considering this was in fact a sublet in spite of signing an AST, was the mesne tenant still legally required to protect my deposit?

Any help greatly appreciated.

Thank you,

Bouine

[JK0]

Hmm. If your landlord came here asking about their lodger who was not paying the last month's rent, I might advise him to pack his bags while he is out and leave them outside.

[Bouine]

I thought it was illegal to evict someone without serving notice and also I am not legally considered a lodger but a subtenant? My contract would make it seem that I sublet the entire property and not just a room.

Also, should my deposit have been protected?

[jpkeates]

You can't have an AST if you share the property with the landlord (you need exclusive possession of something). If you have exclusive possession of the room, with access to shared facilities and other rooms, you may still have an AST for the room.

Unless the tenancy agreement says that the deposit will be protected, the landlord isn't in breach. They would be if they have committed to use a dispute resolution process that isn't going to be possible, but you can't sue for a potential future breach.

Have you discussed your concerns about the deposit with the landlord?

[Bouine]

Hi jpkeates,

Thank you for your reply. That makes sense, thank you. In my agreement it states that it is an Assured Shorthold Tenancy so I assume it just applies to the room with shared spaces and also says "If there is a dispute about the Deposit at the end of the Tenancy, either the Landlord or the Tenant may refer the matter to the Tenancy Deposit Scheme for adjudication once 10 calendar days have passed.". For me that means she has committed to use a DPS. I also verbally requested one at the beginning of the contract. Does this mean she is in breach?

I have spoken with the landlord about it but she is just very relaxed. Said that she will pay me my part once she has received the full sum from the head tenant. She will have left the country by that point and I feel like I have no recourse even though my deposit should have been protected. I am just worried as in 3 out of the 4 last places I have rented, I have had my deposit taken by the landlord and I am just trying to protect myself against a repeat.

Thanks for all explanations in any case.

[mariner]

What do you mean by 'mesne Tenant'?

It would appear this person is your LL & if living in the same building you are her lodger; no deposit needs protection, no eviction Notice required and she could exclude you from the property at any time (normally 1 rental period).
It is not unusual for a resident LL to confuse AST for a lodger Agreement. Sounds like she has copied some of her AST for your doc. Just because your doc says it is an AST does not make it so.
If concerned about your status, talk to her first.

She may be illegally sub-letting.

[Bouine]

Hi Mariner,

Thanks for your help. I think she is illegally subletting. By mesne tenant I mean that she let the flat from the head landlord and sublet to me and one other. So even though we signed a document in which she said that deposit dispute resolution would be with the DPS, this isn't true and I have no recourse?

Sorry for so many questions, I just want to understand the position I am in.

Thank you!

[Wright76]

It sounds as though you are a lodger and not a tenant and they are most likely illegally subletting.

Have you any contact details for the original landlord to confirm?

What notice has been served and by whom?. I'd be inclined to withhold the rent to ensure your deposit is returned also.

If they are renting without permission then they are unlikely to make a claim against you!

[DPT57]

If she is leaving the country permanently then she may not care whether the superior landlord finds out about the sub-letting. I couldn't advise you to without rent as its a serious breach of contract but in the circumstances you've described, I would probably do the same.