Deduction of deposit in case of subletting?

[westminster]

The thing is that consent was never given in writing.

Here it's the clause about subletting on the tenancy agreement:

Not to sublet, take in lodgers or paying guests without the landlord or his agent’s prior consent. (In order to avoid misunderstandings or disputes later, it is strongly recommended that the tenant obtain confirmation in writing of any such consent granted.) The landlord or his agent reserves the right to withdraw, for reasonable grounds and upon reasonable notice, any such consent previously given.

You are continuing to miss the point. The clause does not require the consent to be given in writing. The LL cannot simply declare that the tenancy has ended. The LL cannot make unilateral deductions from the deposit.

My accountant has advised me to send them a threatening email saying that they either return my deposit and extra rent in full, or I will report them to all the associations and organisations the agency is member. If they still do not want to listen, he will send them a letter. What do you think of this?

I repeat; get legal advice from a lawyer, not an accountant.

[westminster]

Has the fixed term expired?

According to post #9

The tenancy agreement started in Nov 2012 and should have had a 2-year duration.

[westminster]

I lived in the property only for the first month (Nov till Dec).
One of the agents (the letting agency is also the managing agency) was well aware, together with the landlord, that I was subletting the 2 other bedrooms and as this agent asked, I sent the references for the 2 subtenants.

When you moved out and let the third room, did you also seek consent to let that room?

It would seem that you misled the agent about your intentions; they thought you were intending to live at the property with two lodgers, and a month later the entire property is sublet.

[Lawcruncher]

Just seen this:

The tenancy agreement started in Nov 2012 and should have had a 2-year duration.

The point I thought I might need to make is not relevant.

[Wight Knight]

I'm going act a little bit of a devils advocate here, as I think there are some key inconsistencies and omissions here which haven't really been explored and they could have an effect on how the OP would wish to pursue the issue. Others have been picked up on but not expanded upon. I'm going to look at this from the LL/Agent side.

It seems to me that the LL would have remedies available in a number of areas here:

1. Breach of Covenant (potentially twice).

2. Remedy in the Tort of Deceit, either by negligent or fraudulent misrepresentation.

3. Enforcement of an implied commercial contract (slightly tenuous).

Tackling breach of covenant not to sublet - we all know that an AST has an implied term prohibiting subletting without consent even if it is not expressly stated in the tenancy agreement (s15 HA 1988). The OP says she had permission to sublet to the first two lodgers but is silent on the third. If true then she is in the clear on the first two, but she would have to produce some evidence that she had consent imo. However the 3rd is the key issue here as upon taking the third 'tenant' she seems to have ceased occupying the property herself. She doesn't seem to have sought consent for this and the LL would be entitled to seek damages for the breach.

Misrepresentation. The LL could easily take the view that the OP has induced this AST by misrepresenting the facts either negligently or fraudulently. This is a bit more serious than breach of covenant as the pool of potential damages is wider. This comes down to the intention of the OP. If her intention was never to live in the property through the tenancy herself (to be an AST she must live at the property) and she represented otherwise (very much implied by signing an AST) then she could be liable here. The fact that she either a. never lived in the property, or b. lived in it for a short time in a sham arrangement; that she seems to have rented out the rooms in the nature of a business for commercial gain; that she lives nearby in another property - would all greatly help the LL's case. If proved then the tenancy is voidable.

Lastly there is tenancy but it is a commercial one. Here the OP is relying on protections built into a statutory regime that the LL cannot contract out of (the AST). But these protections are only available to someone fulfilling the AST criteria (one of which is being in actual occupation). In this case the LL could argue that in fact in the tenancy is in fact a commercial one and should have been negotiated on terms customary for this kind of agreement. That would mean the OP would become responsible for all the expenditure which the LL has covered which a commercial tenant would have picked up. The analogy here is consumer protection, if I go into Tesco's and buy 100 TVs for resale in my shop, I cannot claim the same protections (for returns, faults, etc) as a consumer. I doubt if this is needed as I think the LL would succeed on the first two.

So - although only in case 2 is the tenancy actually void, I think the agent is basically challenging the OP to try and claim their rent and deposit back, probably confident that the OPs position is sufficiently shaky to make both a straightforward claim difficult and the counter-claim and costs potentially high. The LLs position is made easier by the fact they are fulfilling their statutory duty by recognising the tenancies of the current occupants and by the fact that the OP is not in actual occupation - therefore no possession proceedings.

As I say - just being devils advocate!

[westminster]

Tackling breach of covenant not to sublet - we all know that an AST has an implied term prohibiting subletting without consent even if it is not expressly stated in the tenancy agreement (s15 HA 1988).

That is not what s.15 says.

Section 15(1)
Subject to subsection (3) below, it shall be an implied term of every assured tenancy which is a periodic tenancy that, except with the consent of the landlord, the tenant shall not—

(a)assign the tenancy (in whole or in part); or
(b)sub-let or part with possession of the whole or any part of the dwelling-house let on the tenancy.

And OP's tenancy isn't even an AST, so HA1988 doesn't apply.

However the 3rd is the key issue here as upon taking the third 'tenant' she seems to have ceased occupying the property herself. She doesn't seem to have sought consent for this and the LL would be entitled to seek damages for the breach.

I've already flagged up the probable lack of consent for the third subletting. But what loss the LL may have suffered is arguable. So far it appears to be around zero.

Misrepresentation. ... If proved then the tenancy is voidable.

But still, the LL cannot unilaterally declare that the tenancy has 'ceased'. OP has yet to disclose any ground in the contract that entitles the LL to end the tenancy simply by his say so.

the LL could argue that in fact in the tenancy is in fact a commercial one and should have been negotiated on terms customary for this kind of agreement...
That would mean the OP would become responsible for all the expenditure which the LL has covered which a commercial tenant would have picked up.

OP has a common law tenancy because she's not resident, but not a 'commercial' tenancy of a residential property. The tenancy is not automatically 'void' and OP's LL isn't entitled to bow out of repairing obligations etc.

The LLs position is made easier by the fact they are fulfilling their statutory duty by recognising the tenancies of the current occupants and by the fact that the OP is not in actual occupation - therefore no possession proceedings.

What statutory duty to recognize the subtenancies? Which statute?

As I say - just being devils advocate!

I highly doubt the devil would hire you to speak on his behalf.

[Lawcruncher]

I highly doubt the devil would hire you to speak on his behalf.

If the rumours are correct the devil has a whole army of lawyers available. God never sues the devil as he has no good lawyers.

[Wight Knight]

That is not what s.15 says.

Section 15(1)
Subject to subsection (3) below, it shall be an implied term of every assured tenancy which is a periodic tenancy that, except with the consent of the landlord, the tenant shall not—

(a)assign the tenancy (in whole or in part); or
(b)sub-let or part with possession of the whole or any part of the dwelling-house let on the tenancy.

And OP's tenancy isn't even an AST, so HA1988 doesn't apply.

Yes, good point, but you would hope a subletting clause existed in the agreement, we can't really know can we. As a side note, the OP's tenacy isn't an AST now but she could recover her AST rights by moving back in. Lots of helpful information here, much of it applying to private as well as social LLs https://www.gov.uk/government/upload...79/1396431.pdf

I've already flagged up the probable lack of consent for the third subletting. But what loss the LL may have suffered is arguable. So far it appears to be around zero.

We have no idea what actual or financial damage has been caused. This link applies to social landlords but many points on recoverable damages are applicable here: http://www.dmhstallard.com/site/libr...y_damages.html. Especially true if the LL recovered in Tort as well as breach of covenant.

It may also be that the subletting has exposed the LL to HMO licencing/breach costs as well, the LL could even argue that he has paid for an agent to manage an AST that does not in fact exist.

But still, the LL cannot unilaterally declare that the tenancy has 'ceased'. OP has yet to disclose any ground in the contract that entitles the LL to end the tenancy simply by his say so.

Yes, hasn't been disclosed is true. But the OP is non-resident so doesn't have the protections that usually restrain a LL from taking unilateral action (Protection from Eviction, etc). In effect the OP will need a court order to uphold her rights if the LL is successful in making the subtenants his own. This is the LLs strategy - take me to court if you dare - and then he counter claims under the points I have raised.

OP has a common law tenancy because she's not resident, but not a 'commercial' tenancy of a residential property. The tenancy is not automatically 'void' and OP's LL isn't entitled to bow out of repairing obligations etc.

That's kind of playing with words, referring you to LLZ's own factsheet on the matter: http://www.landlordzone.co.uk/common-law-tenancies.htm. And yes it could allow the LL to bow out of repairing obligations if not written into the agreement (which again we have no knowledge of).

What statutory duty to recognize the subtenancies? Which statute?

s18 Housing Act 1988 (http://www.legislation.gov.uk/ukpga/1988/50/section/18). However if the sublet is unlawful then in fact the LL doesn't have to take on the subtenants. My point was if the first 2 sublets were lawful but not the third, the LL is upholding the interests of the occupiers after the head tenancy has ended.

I highly doubt the devil would hire you to speak on his behalf.

There is no need to get personal. Just exploring some arguments that haven't been covered, better that the OP goes into any potential action with eyes open. It might become more obvious that they need a solicitor as I think you suggested earlier.

In any case, you are right to doubt the that the devil would hire me, I am not legally qualified and so would be committing an offence under the Legal Services Act 2007! - and that devil is a stickler for the law....