Getting deposit back from landlord illegally subletting?

by Readers Question

14:12 PM, 30th January 2020
About 8 months ago

Getting deposit back from landlord illegally subletting?

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Getting deposit back from landlord illegally subletting?

I am trying to get my deposit back from a landlord that was illegally subletting his room to me, and that did not protect my deposit.

Here are the details of my situation, I truly hope you can help me with it:

– I rented last year a bedroom in a 2-bed apartment from someone (let’s call him “T”) and paid him a deposit on move in (£800).
– “T” was originally a tenant of the flat along with “U” who was his roommate. Then “T” sublet his room to me, therefore I lived with “U” throughout my tenancy, we shared kitchen and bathroom. “T” did NOT live with me during the tenancy.
– I have signed an AST with “T” when I moved in (although on the contract he did not sign anything as a landlord, his name is only mentioned as Lead Tenant, the other person that signed with me was my former roommate “U”).
– It is only when I moved out of the flat and asked to get my deposit back that I discovered that my Deposit Certificate was actually a FAKE one (copied from the certificate between “T” and the lead landlord of the flat). But here he is referred to as the landlord and I as lead tenant.
– I discovered later during the tenancy that it was actually an illegal sublet. The AST agreement that “T” used with me was probably a copy of the one he signed as a tenant along with U, with the lead landlord, with my name instead of his on the agreement.
– Now this “T” is refusing to pay back my deposit, he has blocked me on social media and doesn’t answer any of my messages anymore.

Now I have 2 questions:
– I am entitled to go to Small Claims Court and ask for my £800 deposit back + interests? What are the costs of that? I’ve heard you can make the defendant pay for your fees if you win.
– More importantly, am I entitled, on top of the Small Claims Court, to make a tenancy deposit compensation claim, and ask for up to 3 times the deposit amount, since he did NOT protect my deposit? Is that claim legit even if I signed an AST for a sublet that was illegal?
The other way to put that last question is:
– Did “T” have to protect my deposit even if the sublet was illegal and I was only renting a bedroom, not the whole apartment? (I remind here that he was NOT living there with me, hence I was not considered a lodger)
– As per “T”‘s AST with the lead landlord, was he not living there from a legal standpoint? Because he still paid his part of the rent on a monthly basis to the lead landlord, which would make my claim invalid?

I’m really lost here I don’t know what to do. Thanks in advance for your help.
Cheers,
Dan


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Comments

Rob Crawford

16:41 PM, 30th January 2020
About 8 months ago

Hi Dan, this could be quite complex and I would suggest you seek legal advice asap. Citizens Advice Centre would be a good start. Make sure you book an appointment to see a Property rental specialist. You will need to take evidence AST, forged deposit cert, proof of rent payments etc. You may be entitled to free legal support depending on your circumstances. In any case CAB will be able to advise on the best way forward and also how to build a good case against this rogue landlord. If proved to have been let to you illegally you could be entitled to not only your deposit back but also rent paid. The local authority (Council Private Rental Sector Team) will be very interested in this but see the CAB first. Good luck.

colette

19:29 PM, 30th January 2020
About 8 months ago

Hi, regardless of anything else he produced a fraudulent deposit certificate to obtain money from you and in doing so made a personal gain of £800 he will not return. That is a criminal offence and you should involve the police. They will give you every excuse not to become inovlved including telling you it is a civil matter. It is not, he set out to defraud you deliberately and obtain money under false pretences and it is fraud. Tell him you are reporting this matter to the police unless your money is returned within 7 days and if not, then do go to the police. It happened to a friend and the police did take it forward by visiting the perpetrator and the money was returned when the "landlord" realised he could end up with a criminal record.

terry sullivan

10:32 AM, 31st January 2020
About 8 months ago

good luck--you will need it!

and forget plod--wos--unless you commit a so called hate crime

Kate Mellor

12:25 PM, 31st January 2020
About 8 months ago

My take on this is simple. T is your landlord and you have an AST with him by default regardless of the paperwork, an AST is the fallback position for a tenancy with a non-resident landlord. T’s tenancy with the superior landlord is irrelevant (in my opinion). The illegal subletting is a breach of T’s agreement with the superior landlord and his landlord may have a claim on him for that breach.
As your landlord, T has legal obligations to perform certain functions, one of which is to protect your deposit & provide the prescribed information alongside that protection. The deposit belongs to the tenant and a landlord must prove their case for any claim they might make to retain all or part of it. Not protecting the deposit means that there are no circumstances under which T can keep ANY of it and is liable to penalties as you are aware. Does T have a job? Do you have an address for him, or means of tracking him down? What do you hope to achieve ideally, your money back with no hassle, or are you prepared to take some time and trouble to teach him a lesson, get a judgement against him and potentially pocket a penalty?
If the former, I’d set out your legal position in writing to him, tell him you’ve taken advice & what the potential penalty to him will be if you pursue it in small claims court. The return of the deposit, plus a penalty of up to three times that amount in a penalty charge and you’ll also be reporting him to the police for providing you with a fraudulent deposit certificate, all of which you will be doing unless he returns your deposit in full within 7 days. Hopefully he’ll decide it’s cheaper and easier to just return your money.
If it’s the second option I don’t believe it’s particularly difficult to do, but the CAB will be a help in filing your claim. The fees are fairly small and I would certainly pay it to get £800 back!

Michael Barnes

13:17 PM, 31st January 2020
About 8 months ago

Reply to the comment left by Kate Mellor at 31/01/2020 - 12:25
Not protecting the deposit means that there are no circumstances under which T can keep ANY of it
Not quite true.
T can keep what he is owed for breach of agreement.
BUT T cannot issue S21 notice whilst he keeps any of it.
what the potential penalty to him will be if you pursue it in small claims court
I understand that the small claims court is not meant to deal with the penalty, only the deposit, but many do allow it alongside the claim for the deposit.
Other than that/ I agree with your analysis of the situation.

Michael Barnes

13:20 PM, 31st January 2020
About 8 months ago

Also, T should be declaring the rent from you as income.
Maybe a chat with HMRC?

colette

15:40 PM, 31st January 2020
About 8 months ago

Reply to the comment left by terry sullivan at 31/01/2020 - 10:32
terry, "plod" as you refer to the police was extremely helpful to my friend and she got the money back following a visit from them. I would not tar all police/forces with the same brush and from the viewpoint of the tenant he should try all suggestions put to him.

Kate Mellor

18:41 PM, 31st January 2020
About 8 months ago

Reply to the comment left by Michael Barnes at 31/01/2020 - 13:17
Thanks for your feedback Michael 😊

Kate Mellor

18:45 PM, 31st January 2020
About 8 months ago

This Shelter webpage should help you with the process of claiming compensation for non-protection.

https://england.shelter.org.uk/housing_advice/tenancy_deposits/tenancy_deposit_compensation_claims


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