This is a question to the blog clinic from Sue who is a tenant. Her is her question.
What is the status of those who have moved into a property thinking they had an assured shorthold tenancy agreement for 6 months but in actual fact the agreement is not valid.
Are the tenants who remain in the property trespassers or licencees who are not protected under the Protection from eviction Act or Housing Act?
If they voluntarily leave the property when the true landlord asks them to do so can they subsequently claim unlawful eviction?
Answer
You have done here what a lot of people do when consulting lawyers, which is to assume an answer your question and therefore leave out some of the facts which I need to be able to answer your question properly.
Why do you say that the agreement is not valid?
I assume that this is because the person who granted the tenancy was not the owner of the property and did not have the authority of the owner to let it out.
But this does not mean that the tenancy is actually invalid. It just means it is not enforceable against the true owner of the property.
It is enforceable though against the person who granted it to you – your landlord. So if the true owner had never found out about it, and you had moved out after six months – you would never have known that your landlord had no right to rent the property to you. So far as you would have been concerned, you would have had a normal tenancy.
However as against the true owners of the property, assuming the letting really was unauthorised, you have no right to be there at all and if they were to bring a claim against you for possession as unauthorised occupiers they would succeed.
So vis a vis your landlord you are tenants with all the rights of tenants. But vis a vis the true owners you are trespassers.
The circumstances of your letting
You don’t give any details about the circumstances under which the unauthorised landlord rented the property to you. Which is unfortunate as this might affect your rights.
I am assuming for the purpose of this article that your landlord was a fraudster, maybe someone who had obtained the keys of an unoccupied property. However, if the circumstances were different, perhaps if your landlord was a relative of the property owner or a legal tenant, then this could change things and you could have more rights.
So I would suggest that before just moving out, you take legal advice from a housing specialist. You will find a list of places where you can get free advice here.
Bringing a claim against your landlord
If you are forced to leave early, then you will have a potential claim against your landlord for what lawyers call ‘breach of warranty of title’ which means that he rented the property to you when he had no legal right to do so.
If your landlord is a true fraudster you will probably have no chance of doing this as he will up sticks and disappear. Or your landlord may be someone wholly without assets (or maybe has hidden them or placed them where you can’t get at them via Court proceedings) in which case there is no point in suing him as he will never pay any judgement debt.
However, assuming your landlord is someone you can bring a claim against, your claim will be based upon your losses. So if you move out and find somewhere to live which is cheaper than your present home – there would (apart from the costs of removal) be no loss as you are better off.
Or if you just move out at the end of the fixed term, you will have suffered no loss at all.
This is a civil claim, not a criminal prosecution, and you cannot get damages just because your opponent has done something wrong.
Your claim will fall under the law of contract, and the measure of damages for breach of contract is what it would cost to put the claimant back in the (financial) position they would have been in had the contract been performed as it should.
Indeed if you just move out without being evicted through the courts, it is arguable that your landlord will say that your losses are your own fault and you should have stayed there!
Which is another reason why, before doing anything, you should take legal advice from a specialist housing lawyer.
My list of places you can go for help is here.
This seems to be standard “rent 2 rent” territory, a curious business model that even has the support of some landlords and others in the lettings industry.
When the same thing is used in social tenancies its a criminal offence for the tenant/landlord to sub-let.
Whenever I have to provide advice and deal with a complaint the first thing I do is a land registry search and increasingly over the past few years the person who the tenant thinks is their landlord actually isnt.
Before xmas a council worker approached me saying she had been approached by a landlord offering a flat for them to rent as temporary accommodation for the homeless. She said something just didnt smell right. I did a land reg search for her and found that the true owner was Prince Edward.
I think Tessa is right about the practicalities of suing your landlord though. In these situations and my god I’ve dealt with hundreds down the years, once it comes to light you never hear from your landlord again, who has probably gone off to manage one of several other properties they are sub-letting at the same time
In Rent2Rent the person granting the tenancy would have been authorized so that doesn’t seem relevant to this case.
There is nothing really curious about Rent2Rent. Whilst sub-letting is normally not allowed on many rental agreements, it can be done with permission, e,g. I have let out my former home – a leasehold flat – with the freeholder’s consent.
A typical R2R case is where the owner of a property wants a guaranteed income without the normal risks of being a LL so rents the property for a bit less than the market rent to someone who then rents out the property at a higher rent but takes the risk of voids, non-payments etc.
There are cowboys in the R2R business but also honest businesses and even local authoritioes.