A landlord threatens to withhold the deposit – what can be done?

Here is a question to the blog clinic ‘fast track’ from Mary (not her real name).

I am moving out of a room in a house that I agreed to rent for six months but had to cancel the agreement early.

I will have given one month’s notice and the ‘landlord’ agreed to return my deposit once I found someone to replace me. Today, he essentially threatened not to return my deposit and charge me for cleaning because I did not follow the cleaning rota.

The person that I have been dealing with does not own the property and has made it clear that it is owned by his sister who lives abroad.

I signed an agreement with him and there is no mention of his sister/the landlord, and I also pay rent to him.

I’m not sure what I can do at this point, but he seems to be acting more as an agent and no one has protected my deposit.

I live with the landlord and his wife, with whom I share a kitchen and living space. There is one other tenant who I share a bathroom with.

Any help would be much appreciated as I am Canadian and moving back home soon!

Answer

The first thing to do is to work out your occupation type. As you share living accommodation with your landlord, then I am afraid you are not technically a tenant, you are a lodger. Which is a type of residential license.

This is not just a semantic exercise. There is a very real difference betweeen the legal rights of lodgers and tenants.

Looking at the law

The law has always treated lodgers differently largely because most lodger landlords are ordinary people getting a bit of extra money by renting out a room in their house. Whereas a landlord renting to tenants is mostly treated as doing this as part of a business.

The legal difference between the two is :

• A tenant has a legal interest in the property during their tenancy. In a way they ‘own’ the property – even if it is just a room in the house
• A licensee occupies the property under a contract / agreement which means that they are not a trespasser.

Because you do not have a tenancy, in particular, an assured shorthold tenancy, your landlord is not required to protect your deposit in a scheme.  Because the tenancy deposit rules only apply to deposits paid by tenants of assured shorthold tenancies.

So although you have the right to get your deposit back – if the landlord fails to pay it back voluntarily, then you remedy is to bring a claim through the courts. You cannot look to the deposit schemes to help you or claim any of the penalties that landlords of assured shorthold tenancies are subject to if they fail to protect their tenant’s deposit.

Note by the way that your status as a lodger is not affected by the fact that it is actually the sister who owns the property. Your agreement is with the person now living in the property – not his sister. In any case, she is a family member.

What can you do?

Probably the best advice I can give is to limit your losses by not paying any more money to your landlord. (It might also be a good idea to comply with the cleaning rota while you are living there.)

You may be in a difficult position if you have paid your last month’s rent. You had better brace yourself for the fact that, although you are entitled to the return of your deposit, in reality, you may not get it.

Life is not always fair. For example, it will be difficult for you to bring a court claim in England while living in Canada.

However, there is no reason why you shouldn’t give it a go.

Writing letters

First of all, have a look at your lodger agreement and see what it says about the deposit and when the landlord is entitled to make deductions. This is what will govern your legal rights regarding the deposit.

Then write a formal letter to your landlord expressing concern about his statement to you that he would not be returning your deposit and asking for details of the reasons for this decision. You should also ask him to provide proof of all deductions he intends to make, including receipts for all payments made by him which will be claiming for.

For example, if you go to court – the starting point is always that the deposit is the tenant’s money and a landlord has to justify, by providing evidence such as receipts, for the deductions he wishes to make from it.

If your landlord replies saying that he is making a deduction because of your failure to follow the cleaning rota – ask him where in the lodger agreement it is specified that you will pay a penalty for this. You could also usefully quote the relevant clause in your agreement, if this supports your case.

Going to court

If your landlord continues to be difficult, you can say that you will be bringing a claim for the return of your deposit through the county courts, and give him a deadline for paying the money. Note that this will have to be after you have moved out as deposits are not normally refunded until this time.

If it is actually necessary for you to do go to court, the best way to do this is using the Money Claims Online Procedure – you will find the website here.

However, if your landlord defends there may need to be a hearing and of course if you have returned to Canada then realistically you won’t be able to attend – which could be fatal for your case.

It is possible for litigants overseas to provide evidence by witness statement but you would need to have solicitors for this and the solicitors costs would almost certainly exceed the value of the deposit.  So think very carefully before issuing proceedings, and take some legal advice first.  It may be best not to do this.  Or do it at this time – you have six years to bring a claim so if you return to England in a couple of years time you could bring it then (make sure you keep full details if this is a possibility).

And finally

I’m sorry this advice is not as helpful as you were probably hoping – although it is possible that if you write a forceful letter to your landlord he may be persuaded to pay up.

You could also get some help from Shelter or the CAB. See here for places where you can get help.  There is also a separate website I have written called Lodger Landlord which has information for lodgers and their landlords.