Section 213 for live-in landlords

[D.Town]

hi there, after I repaid my lodgers deposits I received solicitors letters from them saying that I owe them between 1 & 3 months deposit under Section 213 of the Housing Act 2004 because I did not protect their deposits (which i didn't). It was a very short let while I was selling the property and I mistakenly decided it would be a good idea to sign an agreement with them which I copied and pasted from an AST - unfortunately the agreement said that I would protect the deposits .  

However, I owned and lived-in the property at the time (recently sold it). According to web-sites that I have checked the room-renters were not in fact classified as tenants, they were simply lodgers in my home (e.g. see below), therefore ASTs do not apply 

When I wrote back saying they were lodgers and not tenants and therefore they have no claim, they reduced their claims and are willing to settle for a smaller amount.

Any thoughts on whether I would win this if it were taken as far as court proceedings?

Appreciate any feed back here. Solicitors letters are quite intimidating /stressful

https://england.shelter.org.uk/housing_advice/private_renting/assured_shorthold_tenancies_with_private_landlords

 

 

[Grampa]

The fact that they are willing to reduce the claim should tell you they have no claim if they were genuine lodgers in your house.

Explain that section 213 doesn't apply because  a non-housing act tenancy applies to lodgers and they are requesting monies under false pretences.

You could threaten to report them to the law society and request their complaint procedure.  

Note: the above does only apply if the "lodgers" really were  lodgers meaning you were also living in the property as your main residence, the utilities and your bank accs etc are in that address and ideally shared kitchen and bathroom faculties with the lodger.

It doesn't matter that a AST was used because that element of the contract would automatically be invalid. Also if you have already returned the deposit it shouldn't matter that the contract said you would protect it (some landlords choose to protect lodger deposits) because you have returned it and the lodger hasnt suffered a material loss.

[D.Town]

thank you Grampa. That is very helpful. I lived in Ireland and commuted to the UK every week (for the last 15 years) for work and stayed in the flat during the week in the downstairs bedroom. The utility bills were in my name and I paid them all. The lodgers were on reduced rent as the flat was let purely on the basis that it was on the market as being sold - and that they would have to leave as soon an an offer was accepted. I shared a bathroom with them. I have the screenshot of the original letting advertisement as evidence it was being let with me as a live-in landlord and that it was being sold.

On my initial review of Section 213 I couldn't see a clause where it stated that the act did not apply to lodgers. Do you know where it states that the Housing Act doesn't apply to lodgers?

[Grampa]

Well that could muddy the waters slighty and arguably a grey area what your main residence is. Thats why I asked about the address for bank accounts. Also mobile bills, driving licences etc etc. Because if they are all registered at another address do you think a judge would rule the uk address was your main residence??? Also if you had a spouse in Ireland that would be a negative. 

 

 

[Richlist]

Yep......professional legal advice is very likely required.

[D.Town]

thanks Grampa again. Your original note got me doing a little background research myself. As you say it looks like it comes down to whether a judge will see the UK property as my principle residence or not. I believe it was so I need to take this away now and decide what to do. Note: from what I can see it's the definition of "Excluded tenancies and licences" in Section 31 of the Housing Act 1988 that is the key piece of legislation here. See extract below.

"(2)A tenancy or licence is excluded if—

(a)under its terms the occupier shares any accommodation with the landlord or licensor; and

(b)immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part."

 

[Richlist]

The issue is that :

2a......the tenant DID share the accommodation with the landlord and

2b..... you DID NOT occupy the property as your principle home.

I suspect that you must comply with both 2a & 2b to qualify.

Free legal advice is usually available.

[Grampa]

let us know how you get on

[D.Town]

will do, thanks