Here is a question to the blog clinic from Sarah who is a tenant:
I hope you can help. 18 months ago we moved into a HMO purely because I had a dog and could not find any other accommodation.
We paid a months deposit plus a week in advance then weekly thereafter but the landlord refused to give a rent book or tenancy agreement. All was ok until we started to see other tenants not getting their deposit back as he had worded the receipt as 4 weeks rent in advance.
So after my dog died and we were able to move I went to him with a Dictaphone and recorded him agreeing it was a deposit and we cld give notice and remain in the property for 4 wks without paying.
When I gave notice he disputed this and refused so we agreed to me not paying rent for 2 weeks then he would give us 2 weeks rent on receipt of the keys, yesterday he has used me not being at home to show a prospective tenant round as an excuse to withhold our money.
We were supposed to move out today and when I told him I would take him to court for the money he turned nasty and rang the new landlord and withdrew his original good reference and slagged us off in all manner of ways to the point my new landlord has refused us the property.
He also sent threatening texts saying we had to be out by midday else the heavies would be sent to throw us out with our property regardless of damage. The police are involved with this, however we are now stuck, we have no where to live, a failed credit reference so no chance of being rehomed by the agency and costs of more than £500 in lost removal fees, credit ref fees and loss of earnings.
We have moved our stuff back into the flat but are still awaiting the ‘heavies’. He says as it is an HMO the law doesn’t apply to him and he can evict us in hours,
I am trying to contact the new landlord and show him proof of all this to change his mind and the agency have been great too but for now we are in limbo and have no idea what to do as have absolutely nothing in writing just a bunch of texts and a Dictaphone conversation.
Answer:
Your landlord is seriously out of order and you may well have a substantial claim against him. Where to start?
Legal issues
It sounds to me as if you have an assured shorthold tenancy (AST). This is automatic if you move into a property and pay rent – your landlord cannot prevent it by failing to give you a written agreement.
A written agreement is always preferable but in most cases, if you have ‘exclusive occupation’ of the property – even if this is just your own bedroom in a shared house, an AST will be created.
Whether or not you have a written tenancy agreement.
Deposit issues
Has your landlord protected your deposit? If you have an AST, then if he has failed to protect your deposit and/or served the prescribed information on you (and from what you say, it does not sound as if he has done either of these) you have a potential claim against him for up to 3x the value of the deposit money, under the deposit regulations.
The fact that you failed to allow a tenant round is NOT a reason to withhold your deposit money.
In fact unless your tenancy agreement provides for this (and as you don’t have one – it won’t), he is not entitled to show tenants round at all, without your consent. This is not an automatic right that landlords have.
Eviction issues
Then, if he wants you to leave, he is not entitled to evict you other than via a County Court order for possession. To get this he will have to serve the proper form of notice on you and then issue court proceedings. You are legally entitled to stay in the property for the whole of this time.
He is NOT allowed to evict you via the ‘heavies’. If he does this, he renders himself liable for prosecution in the criminal courts AND you will have a claim against him in the civil courts for compensation.
You may want to have a word with your local authority tenancy relations officer (TRO), as prosecutions for harassment / unlawful eviction are normally done by local authorities (not the police – who will generally refuse to help saying this is a ‘civil matter’ – even though technically it is a criminal offence).
Depending on how busy they are and whether they have the staff, Local Authority TROs can be very helpful and will often agree to write to the landlord warning them that their behaviour is illegal.
Your landlord is also technically liable for prosecution failing to provide a rent book, which is something that could be added to the charge, if your local authority were to decide to prosecute.
Practical issues
However it sounds to me as if you main problem is finding somewhere else to go to.
You may want to consider being upfront about your problems with any potential landlords – explain the situation to them and warn them that your current landlord may well tell them lies in order to be spiteful about you. Try to get some alternative references lined up so they can see that you are decent people.
Although it is not strictly speaking ‘legal’, with someone like your landlord, often the best thing to do so far as recovering your deposit is concerned, is to deduct the money from your last rent payments.
If he threatens you, tell him he is welcome to sue you for the money – as if he does you will bring a counterclaim for the penalty you are entitled to due to his failure to protect the deposit and also for compensation for harassment.
If the worst comes to the worst and you are illegally evicted, go straight to the homelessness department of your Local Authority, as they may well be able to help you find somewhere else to live in this emergency situation.
Or they may agree to bring injunction proceedings against your landlord ordering him to let you back in again.
Getting legal assistance
Note that as well as your local authority TRO, you may also be able to get legal help from
- Shelter,
- your local CABx and
- a local law centre (if there is one).
Tenants – note that I have various free and paid for resources available on my Tenant Law website.
Including my free 12 part e course.
just saying says
August 5, 2014 at 6:27 PMToo many landlords act first and deal with repurcussions later. I wonder if this system can ever be fair when somebody else has the keys to your home. This landlord clearly hasn’t a clue, and appears to have a grudge against any tenant that dares to voice their rights. It’s a very common story, still. He is quite simply lording it over you, seeking to cause you great hardship and anxiety. This is our Britain.
I would sue him for the unprotected deposit (at the max 3x) and the lost removal fees. I am really sorry to hear about this, and the death of your dog.
You cd try Law Works for help with your county court claim. http://www.lawworks.org.uk/
Industry Observer says
August 6, 2014 at 1:18 PMThere is little I would add from the legal viewpont to what Tessa has already said in her very comprehensive response to this question.
If the tenancy is indeed a true weekly one with the legal obligation to pay the rent weekly then the Landlord has a legal duty under s1 of Landlord and Tenant Act 1985 to give you a rent book. So that is offence number one.
Recording the Landlord? I assume this was without his knowledge? I only mention this because in Civil matters and individuals making recordings I am 99% certain they cannot be used in evidence if the recorded party did not know they were being recorded. Criminal is different, but I doubt you can use this. Doubtless someone who knows better than me on this can confirm or refure this. I just mention it because you want the Law on your side and not to give the Landlord any ammo to fire back.
Showing a prospective tenant around – had he booked and agreed a time and date with you for this?
If the heavies turn up and you are ejected from the property record and ideally get wirnessed by others all that occurs. That way you can get aggravated damages as opposed to just damages and maybe even exemplary damages so the payment would be five figures.
Withdrawing the reference and slagging you off. Malicious falsehood at least, defamation and probably slander.
Keep all and any texts
Tenancy Deposit offences – clear breaches by the Landlord
So legally you have the landlord on many counts, and that is just so far.
But what are you going to do about it?
In my now nearly 25 years in this industry I have seen countless situations where one party had a clear unanswerable case against the other, but wouldn’t pursue it. If I had a tenner for every time someone verbally or in writing has threatened to go to solicitors, but didn’t, I’d be very wealthy.
Point is what are you going to do about it? If all that you say is true, and especially if the Landlord cuts off services to your room(s) or even better, throws you out, you can sue the pants off him. In a case about 5 years ago a Landlord waited until a couple went to work one day, then fixed the equivalent of a nightclub solid metal door over the frame of their property so they could not get back in.
That cost him £9000 damages and all costs.
But what are you going to do about it?
Turbervilles says
August 6, 2014 at 2:43 PMIt is perhaps worth pointing out that, whilst there are still some landlords who behave like this, it is very risky for them, for all the reasons Tessa explains above. In reality, with residential tenancies, other than problems with a deposit and a shortage of available housing in London, the law largely favours the tenant.
Industry Observer says
August 6, 2014 at 2:56 PM@Turbervilles
I agree and on reflection my comments to Sarah may have looked a little challenging but were not meant to be confrontational.
Yes the tenant holds a lot of cards even when, not as in this case, they are the ones misbehaving. But at the end of the day the tenant has to do something about it, and with Landlords like this one, who I can just see in my mind’s eye now, that is often easier said than done.
Sarah says
August 6, 2014 at 11:16 PMHello everyone
Thank you very much for all your useful advice. I thought you may like an update.
Last night at 9pm the police arrived, not to follow up my complaint of threats and harrassment but to help the landlord evict us, he was sat in their car. I showed them Tessa’s advice and also all of the proof I had against him but they were not interested.
Two officers one male one female playing good cop bad cop, the woman was absolutely vile, she yawned in my face and looked bored and was so condescending I was amazed. She just wanted to get on with it.
Thankfully the male officer left the property and came back 10 mins later and said he had “phoned a friend” in the housing office, and was told he could not evict us and that all the info we had was correct!!!!! However they still refused to charge the landlord with anything and gave him a lift home and told him to just go through the appropriate legal system to evict us.
I had a meeting with the council today, they don’t have a tenancy relations officer here and don’t pursue prosecutions as don’t have the time or money!! but he did contact our new landlord and made it clear that they have violations against our existing landlord and asked him not to penalise us.
I am in the process of making a formal complaint to the police commissioner and have been advised to contact my local councillor as he may have the clout to force the council to prosecute the landlord.
So I am looking for a solicitor to pursue this case through the courts for me so if anyone can recommend I would be grateful, I am not going to let this go at all and will do whatever I can.
On top of all of this I have had it on good authority that my landlord will still send the heavies round but will make sure he is in the pub with plenty of witnesses. So we still sleep with one ear open as we know we have no protection from the police at this stage.
We are in the Nth Somerset area
Industry Observer says
August 7, 2014 at 8:49 AMI find all this totally bizarre and unreal. The police officer knows someone who works in housing?
The Landlord gets a lift to an illegal eviction in a police car?
And a lift home afterwards?
I know North Somerset Council of old from dealings with them for my parents. Massive authority cannot belive they do not have a TRO.
You “have it on authority” from what “good authority” source?
Ben Reeve-Lewis says
August 7, 2014 at 9:34 AMHI Sarah, I’ve been a working TRO for 25 years and your story is one that I deal with several times a week for an inner London borough and I’ve learnt a trick or two.
Here is my take on it.
Police colluding with landlord:
dead common.
Dont mess about with complaining to their junior officers. Get on to the borough commander and demand an investigation. Police hate bad publicity and they have participated in a criminal offence for which they can be prosecuted. See Norton v Whittle and Greater Manchester Police (Tessa wrote this up on Landlord law Blog a couple of years back)
Bad mouthing you to your new landlord:
A difficult one. Could be slander but housing law wont necessarily help you with that although you could probably add this to the damages list in a civil claim
Turning up to view unannounced:
A civil Tort called Breach of Covenant for quiet enjoyment. Solicitors can deal with this and claim damages. Although a single incident wouldnt necessarily get you very far it would also be lumped in with the other quiet enjoyment breaches below.
Threatening eviction:
Quiet enjoyment again.
Threatening the heavies:
Quiet enjoyment and harassment, Section 1 (3) a: Protection from Eviction Act 1977 which is a criminal offence. Unfortunately it is the council which prosecutes this not the police, which is why the police tend to consider such matters to be civil. TROs are the normal people for this work but there arent many of us about these days with cuts. However, TRO duties are better understood as a function as opposed to a particular officer and all councils can do it. However its a question of if they have anyone with the relevant skills and knowledge.
Having said the above I find criminal prosecutions a waste of time as it take well over a year to get it into court and even if you win the fines are paltry.
What I do these past few years is take out a civil injunction against the landlord, the act of doing so kick starts a civil claim for damages. Once the landlord has been served and the initial case heard I pass all my documents, statements etc on to a local solicitor to take forward a damages claim which usually only takes a few months.
In recent weeks he got £51,000 damages for one of my clients and £20,3000 for another.
Contacting your councillor:
Good idea, worth a shot but bear in mind that councils arent obliged to prosecute, they just have the powers to. However you would be surprised how influential councillors can be. Go on your council’s website and find out the name of the elected member who has the housing portfolio. This will be the councillor that the team will have the most contact with.
Taping the conversation:
Sorry, inadmissible as evidence. In a prosecution RIPA comes into play Regulation of Investigatory Powers Act.
If you go down the route of a civil claim for damages make sure you find one who is knowledgeable about these matters. Surprisingly few are. It is worth travelling some distance if necessary. If you arent illegible for legal aid then you could ask if they would be prepared to work under a Conditional fee Arrangement (No win no fee) The ones I work with do as long as the landlord has assets which could be claimed against to ensure the fee.
Hope this helps
Colin Lunt says
August 7, 2014 at 10:57 AMHi
I am research officer for the Association of Tenancy Relations Officers and we have a member listed for North Somerset whose name is Claire King. Although Ben is right that Councils do not have to prosecute; if a Council when presented with a complaint does not undertake a reasonable investigation the lack of action may be subject to what is known as a Judicial Review (JR) A threat of a JR can often result in a Council taking a complaint seriously.
A council can however decide that they do not wish to prosecute in the given circumstances and can deal with the matter either by a warning or a formal caution.
I have taken the liberty of passing on your original post and your second to Claire for her attention. If you let me have your contact details then I will pass them on to Claire. If you do not wish to put them on the site, I think that it will be ok to do so via the contact method o
for Landlord Law (Tessa let me know and I will find another way)
I hope this helps
Sarah says
August 7, 2014 at 11:12 AMThank you everyone
Tessa, Please pass my details on to Colin / Claire
Tessa Shepperson says
August 7, 2014 at 11:27 AMSarah – I have done that. Perhaps you could keep us updated here. Good luck!
just saying says
August 7, 2014 at 4:17 PMBen, that advice is priceless. From another tenant, thankyou!
Colin Lunt says
August 7, 2014 at 5:54 PMUpdate for any other tenants in North Somerset area.
Following a reorganisation, the Council no longer employs a dedicated named Tenancy Relations Officer. Staff in the Housing Advice Centre will consider any complaints submitted by a tenant and if it is considered necessary to do so, it will be processed as a formal investigation and possibly prosecution. The investigation may be carried out by other staff. As has been posted by both Ben and I, the Council is not obliged to prosecute or even undertake a full investigation.
Some four years ago the Local Government Ombudsman published advice to Councils about the nature and extent of their responsibility in relation to harassment and illegal eviction complaints. It was quite forthright. The law is still the same and so the advice is current.
The Ombudsman is a good method of complaint for members of the public to use after internal procedures have been exhausted. I should know, as I have been through the ringer several times, luckily my case files were able to show the complaints were groundless. I had to justify everything I had done or not done, it was not just a formality that some people believe such systems are.
The restructure of Council Private Sector services into teams of generic advisers who provide basic advice rather than in depth casework is becoming more common across the country.
Ben Reeve-Lewis says
August 7, 2014 at 8:08 PMColin you hit the nail on the head.
People complain about council inefficiency, sometimes with justification, and often cheer on press articles about pressures on council to spend more wisely to reduce council tax bills but the upshot of cuts to keep Westminster happy results in no staff to help out people in a crisis. People who pay their council tax for services that no longer exist.
I have long had problems with Shelter’s far too simplistic equation of rogue landlord complaints received against the number of prosecutions.
Working for ATRO you will know that if we provided a bullet point list here of real world barriers to a successful prosecution of a rogue landlord Tessa’s server might well collapse.
And yet each year I have to fill in their FOI requests that simply make it look like you aren’t doing your job.
People complain about their council’s inefficiency and as I said, often with some justification but politicians use this generalised dissatisfaction to shore up public opinion that encourages budget cuts but budget cuts means staff cuts and those same people who cheer on council bashing are often the first to complain when a local service doesnt exist anymore…..like TROs.
Ben Reeve-Lewis says
August 7, 2014 at 8:45 PMOh and Sarah, I’m not having a go at you in that above remark
Sarah says
August 7, 2014 at 11:08 PMHi all,
Thank you again for all of your valuable advice.
Colin I emailed you earlier to say that my local council had not given me any help or advice but at the end of play today the officer who I saw on weds rang me to say I could make a complaint and it may be acted on. Your information above has far more detail than I was given so thanks again.
I will follow every route possible, I will not let this go. To add insult to injury the new landlord has still refused to let us his house and the agency have chosen to believe our existing landlord even with the proof we have given and the housing officers input!!! They have even said they are not prepared to deal with us further. They told the “new” landlord what the existing landlord had said about us second time around but refuse to tell me as it is “confidential” how does that work!!!!!
Tessa can you please reccomend a solicitor that can cover all of these aspects, the landlord, the deformation, the illegal eviction, I need to recover costs as well,
watch this space, if this wasn’t so stressful and worrying it would be funny.
I am seriously considering giving my own tennant notice because I have tried several other agencies today and no one will consider us, so the safest and quickest method will be moving back to my home
Tessa Shepperson says
August 7, 2014 at 11:17 PMI don’t know any firms in Somerset. I generally recommend Anthony Gold but they are based in South London.
If you want to get some advice from them you can use our non members telephone advice service http://www.landlordlaw.co.uk/services
just saying says
August 10, 2014 at 8:15 PMJust factor in the delay that may come from your own tenant dragging it to court. As is their prerogative. There is a due process, and landlords must follow it.