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ks187

Were We In A Periodic Tenancy Or A Licence To Occupy?

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Hi all

Hoping for some advice if possible. We're currently involved in a dispute with our recent ex-landlord about deposit return. She currently has all of our £1125 deposit and wants to withhold £373 to cover cleaning and some other costs (which we dispute). We have tried to be reasonable and come to a compromise, for example we were willing to pay for the cleaning, which would have been £95 plus VAT from the deposit, but she has refused to compromise.

The full story: we were in a joint tenancy with two other housemates who moved out on 31 March this year (the full amount of rent being £1500/month between 4 of us). The landlord decided she would sell the house at this point and we have an email from her saying "I would be happy for you two alone to remain in the house for £780 a month plus bills until the house is sold". We accepted but as the house went on the market straight away we started looking for somewhere else to live, and subsequently moved out on 26 June.

After our two housemates moved out, they received their full deposits back without the landlord coming to check their rooms (she lives in Northern Ireland). Once we had moved out, she came to the house to sort through all her things in anticipation of the house selling. At this point she decided that the house was filthy (it was not, and was cleaner than when we moved in) and that she wanted to charge us for the removal of two sofas that she had previously said she would take care of (a former tenant had gotten them from Freecycle the year before).

She also did not protect the amount of our deposit once our former housemates had moved out. The deposit from the four of us had been held with the DPS but when the housemates moved out, she returned their deposits, took the amount of our deposit into her personal bank account, and didn't re-deposit it. We have looked into this and we think that she has acted unlawfully, as although we didn't have any new housemates, our tenancy appears to have continued on a periodic basis and therefore she was still required to register our deposit with a protection service. Our landlord is maintaining that we had a 'licence to occupy' despite this never having been mentioned before, and that she didn't intend for us to have the house to ourselves despite the email I've mentioned above which says 'alone' and the fact that she stopped advertising for any new tenants as soon as she put the house on the market.

I know this has been a long post but I'm hoping for an answer to these questions

  • does anyone know about the distinction between licence to occupy and periodic tenancy, and which of these we actually had between April and June this year?
  • as we cannot reach an agreement about the deposit, is it worth pursuing this through the courts to sue her for non-protection and try and get our full amount back that way?
  • the landlord is saying that we have not exhausted all possible mediation routes yet and therefore we wouldn't win in court, but it was my understanding that ADR was taken through your deposit protection service, and if we had none, we can't use this mediation. Is this correct, and will a court take a dim view of us if we haven't tried ADR?

I've spent the last month trying to wrap my head around this and at the minute I'm torn between just cutting our losses and getting a smaller amount of our deposit back, and wanting to hold her to account and take her to court because she's treating us so unfairly to other previous tenants.

If anyone has any advice I'd be so grateful.

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Five year-old revision notes to the rescue! I don't practice in this area so consult with someone who does if things get hairy.

Essential characteristics of lease – Street v Mountford

  • Exclusive possession

  • For a fixed or periodic term must be certain Lace v Chantler

  • At a rent

Your arrangement seems to comply with all of the above. Your tenancy was monthly periodic and even though sale of the house was going to mean an end to the tenancy, that does not create uncertainty as to the tenancy itself. It's this month and maybe next month. And so on. If you'd paid a one-off sum of money to stay in the house "until sold" then that would probably fall foul of the uncertainty rule from Lace v Chantler.

Having an AST signed by the 4 original occupants would make the argument stronger, but the facts of what you were doing fit all requirements for there to be a lease even without any paperwork.

Hope this helps.

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