Tenant landlord refusing to refund the deposit to her lodger / tenant

Here is a section from a recent landlord blog post we have collected :-

I am desperately seeking some advise or assistance.

At the beginning of October I moved into a room which I found on the spareroom website. I paid a £200 deposit to the girl who listed the room, who was the head tenant (also living there, and whose name I believe is on the contract).

Within a short space of time I became very unhappy with the situation there, for various reasons, and at the end of the end of the month gave notice. I gave one month’s notice and paid for the coming month. She agreed I could move out- although extremely angrily – but asked me to find someone to replace me.

It only took a few days, and the person I found to replace me wanted to move in immediately, so 2 days following I moved out and her in.

However… It is now the two months later and still she is refusing to pay back the deposit. The girl who replaced me has also left due to a family concern overseas, and Ania (who is the person in question) is claiming she does not have the money.

My biggest concern is that I never got a contract, and as I was living effectively as a sub-tenant, she wasn’t required to secure my deposit either (if I have subsequently done my research correctly?)

Please help, this has dragged on far too long, all I want is to be rid of the stress and get my £200

Answer

From the sound of it, you were not actually a tenant but a lodger.

Why the deposit protection rules do not apply to you

Generally, when people rent out rooms in their home – which is what happened here as Ania, the person you rented the room from was a tenant living in the property herself – the legal situation is that they don’t have a tenancy but a license to use the room.

You could not be part of Ania’s tenancy as you never signed a tenancy agreement and it is likely that her landlord knew nothing about you. So she was your landlord and you were her lodger.

Even if you did have a tenancy (which is possible but not likely) it would have been with her as your landlord, and so could not have been an assured shorthold tenancy (AST) – as they are not possible if your landlord lives int the same property. (The reason for this is that the Housing Act 1988 which set up the AST system, specifically excludes tenancies where there is a resident landlord).

The significance of this is that the tenancy deposit regulations and the requirement to protect a deposit with a scheme only apply to assured shorthold tenancies. They do not apply to deposits paid by lodgers or tenants with a resident landlord.

The only course of action

Your only course of action therefore, is the courts. I suggest you write to Ania saying that if she does not return your deposit within the next 14 days you will be bringing a claim against her in the County Court.

If she fails to pay then all you can do is bring the claim.

The best way to do this is to use the Money Claims Online service where you apply on the internet. There is quite a lot of guidance on the court website – the procedure is not difficult.

It if comes to a hearing (which is not likely – in most cases the claim is either settled or the claimant gets judgement ‘by default’ i.e. because the defendant does not respond) you will need to be able to prove that you paid the money – presumably you have a receipt?

But I suspect that Ania will not want a CCJ against her name and will pay the money to you once proceedings are threatened.

By the way, you have 6 years to bring the claim from the date the money was payable to you (ie when you moved out) so you can still do this even if there has been a bit of a delay.