Here is a question to the blog clinic from Dan who is a victim of illegal subletting
I’ve been renting from my “landlord” for the past 18 months and the fixed contract ended 3 month after I moved in and since it expired I’ve been renting on a short hold tenancy contract (on a month to month basis with no fixed end date) and yesterday it turned out that he is not the real landlord.
The real landlord came at the house saying she had rented the house to the “fake” landlord for a maximum of 6 people (all of which were supposed to be a family unit) and that the he is in breach of contract for unlawfully subletting the house and renting the rooms to 10 people – basically he has been making money on us by renting the 4 big double rooms to couples and the 2 smaller doubles to myself and another tenant. I know that he will be served with notice to leave for breaching the contract and he will have 60 days to leave (as per the agent who’s acting on behalf of the real landlord).
Now because the real landlord has figured out that she can make more money by renting to more than 6 people she will probably either let us stay and re-new the contract with us, or ask us to leave and start afresh.
My issues are this:
I don’t really want to leave because I know that it will be practically impossible to find another place as new, clean and convenient for the same amount of money (£515 pcm all inc.). Can the real landlord ask me to leave when the notice to the fake landlord expires? In the worst case scenario, where would I stand if I decide not to leave? (consider that I still wish to continue being a fair and law abiding tenant).
The other issue is this:
I know for a fact, that the fake landlord did not put my deposit in a protected scheme because he neither told me and nor presented me with the DPS certificate within the 30 days of me paying it to him! Therefore, I am aware that he is in breach of law and thus liable for that.
Moreover, because the real landlord will serve him the notice to leave, he will have to give me notice to leave (4 weeks as per contract). However, I fear that he may not give me the deposit back and do a runner (he’s already done it with a previous tenant). Because of this fear I am thinking to withhold paying him rent due in 10 days.
Therefore, where would I stand if I decide to withhold paying him rent until he gives me my deposit back as a protective measure for fear that he will not give me my deposit back? Will I be liable and thus in breach of contract considering that he himself is in breach of contract by unlawfully subletting the rooms? Can he evict me for by serving with the Section 21 notice?
I would really appreciate you opinion and suggestion.
I am sure that this sort of illegal subletting is not an uncommon issue.
Your rights will depend on what sort of occupancy you have and this will depend in part on whether the ‘fake’ landlord lives at the property or not. Which is something you have not told me!
However I should start by saying that the ‘fake’ landlord is not really a fake (even where there is illegal subletting) and so far as you and he are concerned, he is your legal landlord. He may be in breach of his tenancy agreement by the illegal subletting to you (and the others), but that does not affect the validity of your contract with him.
The problem is of course that any occupation rights you have are vulnerable to being ended when your landlord’s tenancy with the ‘real’ landlord is terminated. However at the time you wrote your question, it had not been ended so your arrangement still stands.
But let’s take a look at your occupation type.
Your occupation type
- If your landlord is living at the property with you and shares living accommodation (for example if you all use the same kitchen and bathroom) then you will be a lodger with no long term security of tenure.
- If your landlord does not live on the premises, then what you probably have is an assured shorthold tenancy for your room with shared used of the common parts of the property (eg bathroom and kitchen).
However, you say you are in a double room. In which case, even if your landlord lives elsewhere-
- If you are sharing your room with someone else who has a separate agreement with the landlord then you cannot have an AST as one of the main features of ASTs is that the tenant has ‘exclusive occupation’ of at least their room. So if you are sharing with someone under a separate agreement this will not be the case, so the most you can have is a license agreement.
Illegal subletting and your occupation rights
Your occupation rights will be strongest if you have an AST as then your landlord is under a duty to protect your deposit and you can only be evicted if the proper form of notice (in most cases this will be section 21) has been served on you. However as he has not protected your deposit any section 21 notice he serves on you will be invalid.
Your rights will be least if you are a lodger as then your landlord is under no duty to protect your deposit and he does not need to get a court order to evict you. He can evict you via the procedure I set out on my Lodger Landlord site.
If you are sharing the room with a stranger and have a license, you will have fewer rights than you would as a tenant but more than if you were a lodger. Your landlord is under no duty to protect your deposit but he does have to get a court order to evict you. The procedure is different from the procedure used for tenants though and is the same procedure used to evict squatters (except that you are not a squatter!).
However if the property owner gets a possession order against your landlord then the bailiff will be empowered to evict whoever he finds at the premises (ie you and the others subletting). This is the case whatever sort of agreement you had with him – as these will end when his tenancy ends under the court order.
If this happens you would be entitled to claim compensation from your landlord – although if he is a dodgy type (which he could be as he is illegally subletting) your chances of getting any money out of him are probably remote. On the other hand, his chances of claiming any unpaid rent from you through the courts will be virtually non-existent …
Withholding money to reclaim your deposit
As your deposit has not been protected, if your landlord is a dodgy type, withholding rent is probably your best chance of getting it back.
However as he is (at the moment) your legal landlord this would be a breach of contract. If you are a lodger, he would probably be justified in evicting you without a court order …
You will therefore need to choose carefully your moment for withholding it, should you decide to do this.