Suing landlord, what next after LBA?

[Ed999]

I decided to wait for more information to be posted. But now that the situation is clearer, in my opinion you need to consult a Solicitor.

 

 

As you are sharing, you might not have a tenancy, because shared occupation is ordinarily not exclusive occupation. If you don't have a tenancy, you can be evicted without being served with a section 8 or section 21 notice.

 

The distinction between a tenancy and a mere licence is that a tenancy is created by granting the occupier exclusive occupation of premises; and a licence is created by granting shared occupation.

 

An essential element of a residential tenancy is that the premises form a seperate dwelling (i.e. that the premises are a self-contained dwelling).

 

These principles emerged from the leading case of Street v Mountford, decided by the House of Lords in 1985. I recommend that link to you, with its illustrations of how the test works in practice.

 

So where the landlord lives in the same building, it is essential to prove the tenant is not sharing the accommodation with the landlord. For example, if the landlord agrees in the contract not to enter the premises except on 24 hours prior notice, or if the premises has its own front door, this can be an important indication.

 

In every case it is a question of fact: the court which tries the case has to decide, on the actual facts of the case, whether or not exclusive occupation of a seperate dwelling was granted.

 

 

This sharing can be with other tenants/lodgers, or with the landlord. You would be merely a lodger (known legally as a 'licensee').

 

See, for example, Types of Tenancy.

 

Go onto the website of the housing charity, Shelter. It can help you work out whether you have a tenancy or only a licence -

 

Shelter's tenancy checker

 

 

When you posted so little information initially, I thought you were only a lodger. But you need to carefully check whether you are a lodger, because the point is so important. A lodger can't claim under the tenancy deposit scheme, and might be subject to instant eviction.

 

It's unlawful to evict you without first giving you 28 days notice in writing, in the form prescribed by law, if you only have a licence, unless it's an "excluded licence" (for example, one under which you share any accommodation with the landlord, where that was the landlord's principal home both when the licence was originally granted and when the licence terminated).

 

It's unlawful to evict you without first obtaining a court order, and this is so whether you have a tenancy or a licence, unless it's an "excluded licence" (for example, one under which you share any accommodation with the landlord, where that was the landlord's principal home both when the licence was originally granted and when the licence terminates).

[Ed999]

Considering this more deeply, I've now come to the following conclusions.

 

 

Housing Act 1988

 

The effect of the 1985 court decision in Street v Mountford was modified by the Housing Act 1988 (which applies to tenancies granted after February 1989).

 

Section 3 of the 1988 Act creates a tenancy if the tenant has exclusive occupation of some living accommodation, even if he shares other living accommodation with other tenants:

 

• http://www.legislation.gov.uk/ukpga/1988/50/section/3

 

This removed the element of Street v Mountford which prevented a tenancy existing if the tenant did not have exclusive use of ALL the living accommodation necessary to amount to a "separate dwelling".

 

If he has exclusive use of some accommodation (even as little as one room), he has a tenancy - even though some other living accommodation is shared with other tenants.

 

However, section 3 expressly excludes the landlord. So where the sharing is with the Landlord, a tenancy will NOT exist.

 

 

What is a separate dwelling?

 

In 1985, as a result of Street v Mountford, it became essential to identify what living accommodation comprised a 'separate dwelling'.

 

A dwelling was said to be the living accommodation which makes up a home, and amounted to (at minimum) a bedroom, kitchen, and bathroom.

 

The role of the County Court is to enquire into the facts, and to establish on the actual facts whether exclusive occupation has been granted of enough facilities to amount to a seperate dwelling: which must be self-contained, and typically comprises a bedroom, a kitchen (or cooking facilities), and a bathroom (or en suite lavatory and washing facilities).

 

One test is whether the accommodation is self-contained. If premises have their own front door, that is an important indication that they are self-contained.

 

In Uratemp Ventures Ltd v Collins [2001] HL 43 (concerning a hotel room containing a shower and basin but no cooking facilities) the House of Lords decided that premises amounted to a "dwelling" even if they had no cooking facilities, on the basis that 'dwelling' should be given its ordinary meaning, a place where someone lives or resides; and is capable of being someone's home whether he has his meals out, or warms up food to eat in his room, or does a little rudimentary cooking, or a bit of all three.

 

Therefore the bare let of a room was capable of being a letting of a separate dwelling, where the facilities are not being shared.

 

Section 3 of the 1988 Act now saves an occupier who shares essential living accommodation with other tenants, by creating a tenancy; but it does not create a tenancy where that sharing is with the landlord.

[marlow]

REALLY appreciate your effort in looking up things for me Ed but it kinda flies over my head a bit. Cliffs? Am I lodger then or not? And does this now mean that even when house sharing with other people but the landlord doesn't live there, is that also being a lodger?

 

edit: Oh I think these were pretty much your cliffs?

Section 3 of the 1988 Act now saves an occupier who shares essential living accommodation with other tenants, by creating a tenancy; but it does not create a tenancy where that sharing is with the landlord.

So they decided it's not a tenancy if the particular human being with arms and legs that one shares with happens to own the house? Raw British common sense at it's brightest. Sigh

[mariner51]

marlow, like it or not, the concensus is you are a licensee (lodger) not a Tenant so AST cannot be granted. Edd's latest considered opinion that you are an 'excluded' licensee with minimal eviction rights, is compelling. No AST, no requirement for DPS, though other civil means of recovery are available to you. Claims on deposit for 'damages' are likely to take precedent over rent arrears. If your deposit = 1 months rent, you cannot assume it will cover final month rent. Any shortfall can be claimed pursued by LL in County Court. You have not addressed the question whether your 'contract' requires you or LL to clean your 'exclusive' room & whether you are required to provide your own bed linen or sleeping bag.

Your orig post suggested invasion of privacy based on a missing football. You later explain it was stored in the garage. Unless you were granted exclusive use of the garage,I doubt you can claim 'invasion of privacy'. The correct term for an AST tenant would be 'riight to quiet enjoyment'.

The Law may not be perfect but I think for lodger vs T it has the balance about right.

If you owned your own home and needed some help to meet the bills, would you be prepared to offer AST rights to a lodger? I think not.

 

As always you have the option of moving and risking a legal hit on your deposit

[marlow]

Definitely! If I wanted someone to move into my house as a lodger I would 100% expect that to have the same rights as a tenant. Why the hell shouldn't they?? I don't believe I was asked if LL cleans my room. Of course she doesn't. It is a furnished room like a normal tenancy, she provides absolutely nothing else. So because my sealed up things are stored in a "shared" garage that gives someone a right to steal from said belongings?? It gets funnier. Indeed it seems like there is so much ambiguity here that I need to seek PROFESSIONAL advice and indeed an individual judges decision would be all that would settle anything. CLIFFS: law, schmaw.

[MrShed]

Definitely! If I wanted someone to move into my house as a lodger I would 100% expect that to have the same rights as a tenant. Why the hell shouldn't they?? I don't believe I was asked if LL cleans my room. Of course she doesn't. It is a furnished room like a normal tenancy, she provides absolutely nothing else. So because my sealed up things are stored in a "shared" garage that gives someone a right to steal from said belongings?? It gets funnier. Indeed it seems like there is so much ambiguity here that I need to seek PROFESSIONAL advice and indeed an individual judges decision would be all that would settle anything. CLIFFS: law, schmaw.

 

If you wanted someone to move into your house as a lodger, I can guarantee that you wouldnt want to grant them tenancy rights.

 

You would not want to place someone into your own HOME who has an extended degree of security of tenure.

 

BTW - much of the ambiguity is yours and yours alone. Without the exclusive possession of a full dwelling, I fail to see any.

[marlow]

The ambiguity was what my rights are as a lodger compared to a tenant, or at least throughout most of this thread. Ed seems to have made that a bit clearer.

[Aequitas]

You can have an assured tenancy (and therefore an assured shorthold tenancy) of part of a house.

 

However, if the resident landlord conditions are met (see above) then the tenancy cannot be an assured tenancy.

 

Whether you are a tenant or lodger does not depend on whether on whether you share something, but whether you are deemed to have exclusive occupation of a particular part.

 

There are no hard and fast rules, but you will not be deemed to have exclusive occupation if services are provided or the arrangement is such that each occupant has the right to use a room, but not a particular room.

[marlow]

So I've put down the fee on a flat but the LL went with multiple agencies. It seems when you pay the fee for it to be taken off the market the other agencies aren't told of this and they carry on showing people around!

 

Anyway my situation is that because I don't work and can't get a guarantor then I can pay 6 months up front instead. Fine for a 6 months contract but this LL wanted 12. So I said I want to stay indefinitely not just 6 months and said if they make it 6 months then I will pay the contract renewal fees incurred to LL for the privilege. All was agreed.

 

I paid the fee without a moving date being dealt and I said well I have until end of Sept so I better ask my current LL if she minds me leaving earlier. She agreed to it being 7th Sept, onto the agent, onto the LL (sigh what an annoying process every time), LL agreed.

 

Then I get phone call this morning from agent saying LL asks if I can bring it to start of Sept instead as there is someone interested from another agent and she wants someone moved in ASAP! So now I'm forced to come forward 1 week and still have to pay a week's rent where I'm currently at. Ok, no biggy - better to lose £80 rent than £150 admin, and give me more leeway for moving anyway.

 

So then it was time to fill in reference forms. Now these shouldn't even be required. I'm paying all the freaking rent up front, for crying out loud!! But I'm worred that references will come back...I dunno, dodgy or something. And then LL could turn round and say 'sod you I'm letting someone else have it!"

 

In this case would I be entitled to claim my admin fee back, and do you really think it's likely anyway, in anyone's experience?

 

Ty for any help.

[Snorkerz]

Yes, if the landlord refuses your application then you are entitled to your fees back in full. This quote from another site (that I may not be allowed to mention on here - but it's author posts on here as Aequitas) gives more details

 

Holding deposit

 

The intention here is that the tenant pays over a sum on the understanding that the property is not offered elsewhere. If it is declared to be non-refundable then there has to be an obligation on the part of the landlord. It is, I suspect, rarely set out clearly what that obligation is. If the arrangement is vague there is no contract and the deposit will be refundable. If the arrangement is not vague then what we have is effectively an option for the tenant to take the tenancy. If it is an option for the tenant to take a tenancy, then that presents difficulties for the landlord if he has not set out clearly what conditions are to be fulfilled before the option can be exercised. The drafting of options is best left to experienced conveyancers.

[marlow]

All I can add is that agent DID write 'non-refundable' on it.

[mariner51]

Marlow, you can check your own credit report ( 3 CRAs ~£2 each) to see if anything nasty lurks in your credit history.

Your current LL has accepted your notice to leave early, wihout app penalty on 7 Sept. Have you signed new AST and paid any money for rent? Even if your credit report is iffy, if new LL has your 6 months rent he may decide to ignore CR. Move in asap to firmly establish T.

[martin2006]

Post 2 refers to a holding deposit, quite different from admin fees. the admin fees are usually to fascilitate such things as credit searches etc, thats why they will be stated as non refundable. A holding deposit is exactly what it says on the tin and refundable.

[Snorkerz]

In this instance it is the landlord refusing the tenancy. Prospective tenant can not be made to pay non-refundable admin fees if the property is being offerd to other prospective tenants - all bar one are going to be forced to pay unnecessary fees.

[marlow]

I haven't put anything other than the fee down yet. The agent did say it was the reference, admin and HOLDING fee all in one but it doesn't say as much on the receipt. All the receipt says is that I paid money and the address of the property.

 

Is there no GUARANTEE the place is mine BEFORE I've paid the rent and gotten the keys? This strikes me as not being very fair because like all people I should imagine, arrangements have to be made prior to moving in and prior to paying rent and tax because we're still paying that where we live up until the day of move. Things like phone, broadband, tv connections, all have to be installed and ready for the day of move and these are contracts too so you can't begin one without absolutely guaranteed the place is your's. Can this never be the case??

[mariner51]

There is no enforceable tenancy agreement (AST) until day you move in. If there was an understanding by both sides to rent you the property on certain T&Cs, either side could be held in Breach of Contract. This means the other side could recover their losses incurred because of the Breach. So no there is no guarantee of a T until you move in, only the chance of suing for Breacj of Contract.

It is not advisble to arrange to move BB/landline etc before you are a T. Short gaps are usual in any house move.

[marlow]

Ok so my worst fears have come true and the now EX landlady is trying to con me out of my deposit. I've since left that place and moved out recently. She has sent me an email saying she wants to pay only £190 of the £350 deposit for certain reasons. She posted pics to me of these reasons. One pic was a ball of dust that was under the bed and a piece of paper lol. She posted other pics of absolute bull****, like some damage done to a fuse box that was in my room (totally out of reach and would have had no reason at all to go anywhere near) something in the shower, marks on the wall, and claimed she spent over 4 hours cleaning (even tho I cleaned it top to bottom before I left) and is charging £10 an hour for said cleaning.

Fact is there was no inventory whatsoever so she doesn't have a leg to stand on.

 

So what's my next step? I've responded to her email contradicting each photo she sent stating the property was already in the exact conditiion and said she can deduct 5 pence for use of electric to hoover up a ball of dust lol. I've given her 7 days to pay me my monies so what is next, can someone point me to a LBA or maybe the letter after that please? ty.

 

ps I am not bringing up anything TDS either as I've been told in this thread apparently I only qualify as a lodger but things did seem a little ambiguous in all those who advised this. Can I get a CAST IRON verdict for this so as to know whether or not threaten my LL with the TDS stuff? ty

Edited September 12, 2011 by marlow

[mariner51]

We don't do CAST IRON, only reasoned opinioms.

Concensus is you paid a deposit, you are a lodger, hence no need for LL to protect deposit in DPS.

You can initiate SCC action for full/part return of deposit, thus putting LL to justify her part claim on it. Emails by both parties may be introduced as evidence. The Judge will decide on the extant circumstances. If you lose you pay LLs court fees + allowable costs as well as your own and vice versa.

[marlow]

But my chances of winning should be extremely high surely? No inventory at all it's just one person's word against another and some photos of a dirty towel and some dust lol. Surely that's weak.

 

Also, she paid in £190 to my bank today so is obviously ignoring my warning.

 

Will it literally be standing in front of a judge saying "it was already like that" and her saying "no it wasn't"?

 

I have a small claims manual from years back written by Veronica Newman but I'm seeing in the sticky on this forum the guide advised is a different one, will the one I have still be ample?

Edited September 12, 2011 by marlow

[marlow]

Any idea how much court costs would be?

[marlow]

I sent an LBA via email is that good enough or is letter best?

[marlow]

I'm starting a new thread because the old one in which I'm aksing the same questions is not gettign any help. I have trawled the forum but only seem to be able to find advice up to the LBA stage on suing landlords and not much beyond (maybe I've missed something).

 

Firstly I need to know if it's critical to send the LBA via post or is email enough. I have already sent one buy email. Should I send a recorded letter instead, thus starting the 14 day period again?

 

The issue is that she is keeping money based on untruths about the property. Of the £350 depsit she has returned only £190, claiming a builder's quote of £85 to fix a damaged fuse box (that I didn't go within a foot of during my entire stay and was already damaged before the tenancy began), unblock a blockage (I presume she means shower. The shower was blocked when I first moved in and I in fact unblocked it by removal of the metal cap above the drainage hole to reveal about 35 wigs worth of very long black hair, if anything I left the shower in 100% IMPROVED condition to that in which it was presented), and a shelf. Said shelf was taken down by me (with her permission) to accomodate a PROPER bed instead of the hazardous one that was already there. It literally would take 10 seconds to apply the 2 screws to put the shelf back up, a builder's quote is not even close to necessary!

£45 for 4.5 hrs cleaning at £10 an hr (totally unneccesary as I left the place SPOTLESS and exactly how it was presented to me in). And a few other little things I'm not bothered about.

 

She posted pics of so called "damage" which was already there before I moved in, I can post these pics if anyone wants to see them.

 

The main thing I'm disputing is the £85 builder's quote and the £45 cleaning. BTW there was no inventory whatsoever.

 

Then after the LBA (which she will 100% ignore) what is the next step?

 

Appreciate any advice.

[miss muppet]

I think maybe people are really wondering whether it is worth all the hassle for a relatively small amount of money. I took my landlord to court about 8 years ago but it was for the return of my deposit of around £800. I had photographic evidence of the way the property was left and was lucky enough to be in receipt of a questionnaire I had prepared for the new owners, the property was sold after our departure and the new owners were very cross because of the faults that occurred when they moved in plus garden had become overgrown - I'd been taking pictures of that too, cheeky so and so's even complained they had suffered due to a void period when we moved out! They lost and we got our costs and you can sue your landlady using HMCOL but bear in mind that you might lose. You can complete the Particulars of Claim on line with the very clear instructions provided.

[marlow]

I agree it's definitely a petty amount of money but it's the principal of it isn't it. I was very ill treated living there and asked to leave after the minimum term of 6 months (which inconvenienced majorly). Her reasons for asking me to leave (I found out from overhearing her talking to a friend) were thus: A) I just don't like him B) he left a few crumbs one time after using the toaster C) he doesn't talk to my cat when she meows. And a few other utterly insane reasons. This makes it very clear that she has made up total crap to take money from me and even though it's only £130 or so it's still a huge disgrace.

 

Also I would like to hear a view on how I can possibly lose when there is no inventory to back anything up at all?

[The Carpet Cleaners]

First of all you should send the LBA by post, with proof of posting from the post office, she can always say that she did not receive the email, but proof of posting is deemed to have been delivered 2 days after posting. Change the LBA to 7 days notice if you do not wish to wait 14 days.

 

Was the deposit protected?

 

if not there is no point trying for 3x or anything like that, however without an inventory, she should not have a leg to stand on, but you can never predict how the judge will be on the day.

 

hope this helps