Is this fraud??!!

[Alison82]

Hi Folks

I have a bit of a dilemma and am in need of help.

My flatmate and I decided to take on a third person in the other room of our flat 2 months into our 12 month contract, this was always a possibility and was agreed to by the landlord even before we signed the contract.

Initially the landlord sent us our contract via email as a word attachment, whilst we was looking for the new tenant via our ad for the room we spoke to our landlord about how we should go about the contract for the new tenant and was told they can either join our contract or we can sort one out ourselves.

Now as we found this person we thought the best option was to use the contract that was given to us by the landlord as they would need to follow the same rules we agreed to with the landlord but amend a few things (as if to sub let the room) such as the date, name added as a sub tenant (e.g. my name, friends name plus one other tenant) amount to pay (as they are just paying their share) deposit amount (which we made a receipt for between myself, my friend and the new tenant to be returned by the landlord less any deductions at the end of the lease). We removed the part where the landlord is to sign as we cannot sign on behalf of the LL (so the only person who signed this was the new tenant). The tenants solicitor looked over it and said it was ok so it was fine they paid the rent and deposit and moved in.

2 weeks later our LL emailed us saying that they have decided to sell the property and want us out mid January (should really be mid February as that is 6 months as the contract was taken on in august) now the new tenant having just purchased a bed and rented a van to move their stuff in was furious and went to their solicitor who told them that the landlord should remberise costs as the termination is within the 12 month fixed term. The LL was annoyed about this and basically was saying that they nave no responsibility to the new tenant as LL didn’t sign the contract with them only with us original 2. I understand this and we are willing to reimburse the new tenant.

The landlord is not saying our amendments to the contract is fraud; and if we make a fuss about getting our deposit back LL will start legal proceedings!! I would like to know if this is the case, we did not sign on behalf of anybody and we did not fake anyone’s signature and we did not pretend that we ourselves were the landlords so we are a bit confused of where we stand, can anyone offer us some advice?

Hope this makes sense, if not let me know and I will explain further.

[Esio Trot]

It helps if you give specific dates: start of tenancy, end, whether any break clauses (specific wording if there are) etc.

Looks like you signed a 12 month tenancy. If so, and in the absence of any properly drawn up break clause, then the landlord is stuffed. They can't demand you leave until mid-August, and even then if you don't go they will have to go to court. If you do agree to leave early, then they have got to make it worth your while - financially. e.g. pay all removal costs, postal redirection, compensation for your time and stress in moving early etc.

Your extra flat-mate could still move in, though your tenancy will probably rule against this - it's just that they will have no occupation rights.

IMPORTANT
Has your deposit been protected?

If so, you will have received a certificate and details of how it has been protected and by whom and the law says this should have been sent/given to you within 14 days of the start of the tenancy.

If not, or you have not had any protection documentation, then DO NOTHING NOW but make sure you have good contact details of the owner. AFTER you have left, bang in a claim with the small claims court. The law says you have an absolute right to three times the deposit as compensation, plus the deposit.

[Aequitas]

On the facts as you have described them, there is no fraud.

[Alison82]

Hi there was a six month break clause but i understand that that is for the tenants use and not the LL. We did not receive any information of our deposit or any certificates within 14 days but we have now discovered that it is just being held in their normal day to day current account (and has probably been spent already).

So from the details of my first post my friend and I have not committed fraud by amending the original contract to give to the third tenant?

Many thanks

[Esio Trot]

Originally Posted by Alison82

So from the details of my first post my friend and I have not committed fraud by amending the original contract to give to the third tenant?

But is yours the "original contract"?

It is likely that you only have your copy, the landlord has the other. Assuming this, you cannot create a new tenancy, nor commit fraud as you haven't created a new tenancy, nor have you attempted to use the amended agreement for unlawful personal gain. In addition, the landlord has not incorporated this change into his copy, so has not accepted the change - the original thus stands.

The break clause should be available for the use of both parties. However, in order for the landlord to use it he/she must AFAIK follow the same rules as for issuing a s21.

[MrShed]

In addition to the above, worthwhile noting that the "new" tenant has precious little security of tenure, and is certainly not entitled to any recompense from the landlord.

[Alison82]

Hi thanks you for your replies.

how can i reassure my flatmate that this is not fraud and let the LL know that she cannot sue us for this?

I understand this re the new tenant; we are going to get her costs for her or take that out of our own pockets as none of this is her fault.

Thanks

[MrShed]

There are various forms of communication - we have the utilisation of telephone systems, face to face communication, and internet instant messaging

No but seriously, just tell him! You cant prove something doesnt exist, only that it does.

[Alison82]

Ha ha ha, very funny!!

Yeah very true, I will just tell them that when they come to collect the keys, they have to prove us guilty not u7s to prove our innocence

Thanks

[Alison82]

Hi

I have discovered that my landlord has not protected our deposit and now wants to withhold the full amount of £1500 to prepare some screw holes from some shelves, mend a wobbly wardrobe (which was wobbly to begin with; we improved it) and to lay some slats on the bed (no gluing or nailing just spacing them out by hand as they lay on a metal edged frame!). We know she is selling the property and does not have space in her home to keep this huge wardrobe or bed and only wants to pick holes as she has spent our deposit.

My question is even if these repairs are valid can we still recover the full deposit plus x 3 from the courts as she has not protected our money (within the first 14 days) she has told us it is in her current account many times.

I understand about the holes and I am willing to pay for a handyman to fix that as I done a crap job as I am no handy man approx £50

Many thanks
Alison 82

[demon_x_slash]

I posted this a little while back - I hope it helps with your situation. Note the part about notice to quit! My emphasis:

From the Governmental website:



How does deposit protection work in practice?

There are two types of scheme: a custodial scheme and an insurance-based scheme.

The landlord - not the tenant - has the option to choose whether to safeguard the deposit in the custodial scheme or in an insurance-based scheme. The names of the schemes, and their contact details can be found on the Who are running the schemes? page.

A landlord will have 14 days to safeguard a deposit from the day he receives it. The landlord will have to provide the tenant with certain information about the scheme safeguarding the deposit within that period. This information has been prescribed in secondary legislation and is set out on the Prescribed Information page.

To avoid disputes having to go to the courts, each scheme is supported by an alternative dispute resolution (ADR) service - although the use of this service is not compulsory.
How can a tenant find out if his deposit has been protected?

When a tenant pays a deposit, he should ask his landlord this question: "How will my deposit be protected?" Within 14 days of the landlord receiving the deposit from the tenant (which could be in the form of cash, cheque, money transfer, etc), the landlord must provide the tenant with the information about the scheme providing the protection. The 14 days runs from the time the deposit is received, and not from when the funds are cleared. A tenant will be able to contact the scheme to find out if his deposit has been protected.
What happens if a deposit has not been protected?

1. Unable to use 'notice only'
   
   Currently, a landlord can obtain an order for possession of an assured shorthold tenancy (AST) at any point after the first six months of the tenancy providing any fixed term has expired and the landlord has given the tenant at least two months' written notice (under Section 21 of the Housing Act 198. This is known as 'notice-only grounds".
   
   However, under Tenancy Deposit Protection (TDP), the landlord is unable to serve the notice enabling him to regain possession of the property using the 'notice only grounds', if the deposit has not been safeguarded and the prescribed information has not been passed onto the tenant within 14 days of the landlord receiving the deposit.
2. Payment to the tenant
   
   Tenants can make an application to a county court if they believe that their deposit is not being safeguarded or where they have not been given the prescribed information about the scheme in which the deposit is safeguarded within 14 days of the landlord receiving the deposit.
   
   Where the court is satisfied that the landlord has failed to comply with these requirements, or the deposit is not being held in an authorised scheme, the court must either order the landlord within 14 days of the making of the order to repay the deposit; or order the landlord to pay the deposit to the custodial scheme administrator.
   
   The court must also order the landlord to pay the tenant three times the deposit amount within 14 days of the making of the order.

What if a tenant moves out of the rented property before realising that his deposit hasn't been protected?

The tenant will need to apply for a court order and if the court finds in favour of the tenant the court will order the landlord to repay the deposit amount to him.

In order to avoid this situation, tenants should make sure that their landlord has given them the prescribed information relating to the scheme that is safeguarding their deposit, and check that the deposit is safeguarded.

[Esio Trot]

Landlord not protected the deposit?

As long as you entered into a tenancy agreement after 5 April 2007, you should be shouting "Weh Hey"

The landlord has committed an absolute offence. There is no defence, and you can go to court, pay £120 and claim both the deposit and three times this as compensation (plus your £120 court fee).

In your case a total of £6,120.

The procedures for doing this are new, and even most court staff are unsure of the process.

One thing is clear though, it is best to wait until you have vacated before you slap in a claim. If you have any fears on reprisals, you don't have to put your current address on the claim. You can use any address in England and Wales (accountant, relation, bank, friend) as long as you can be sure you will get the court papers and any responses.

Before you leave, make sure you have full details of the owner, including any assets (check that the property you live in and/or the landlords address for service is owned my him/her).

There are many private landlords out there who don't realise the draconian rules of the deposit protection scheme. The legislation is a sledgehammer to crack a nut, and will cause more owners to think twice about continuing to rent out property (and next year we have Energy Certificates - which I understand will have to be done every 3 years, whereas the EC only specify 10. It's legislation gold plating again, and is one reason for this country's lack of competitiveness. I'm ranting, so better stop.).

[Alison82]

Wow thannks guys, you've put my mind at rest. good thinking about the address thing, this woman is physco she constantly screams at us she had my flat mate in tears during the past few weeks and kept rining her over and over again last night!!

I just want this to be over, I don't even want her money just what I put in. I know they are broke which is why they are selling so I don't know how they would afford that.

Thanks for your help.

I love this forum!!

[Alison82]

Hi should a claim for my deposit be on a N1 form or a N208 part 7 or part 8 as I have seen conflicting posts can you please explain the differnce

Thanks

[Planner]

The answer is we dont know yet!. Everythings at such an early stage. Some people have submitted a money claim with the N1, others have submitted a non-money claim with the N1, recently it came to light that someone else had been advised to use the N208 part 8 route.

You need some professional legal advice. The courts dont know the answer because you can only speak to the office staff. I imagine CAB dont know the answer for obvious reasons. Depending on how "badly" you need the money may I suggest putting off the claim until after Xmas until we have a more definate answer?

If you want to claim now then my advice would be the N208 (part 8 ) route but reading the online guidance you (apparently) have to state a number of very specific things in a a very specific way. But again, my advice (and the advice of others) for a good couple of weeks was the N1 "something other than money" route, so you can see the uncertainty. So seek legal advice or wait for a more certain answer after Xmas. If you choose the N208 route we can help with the wording but cant "guarante" its the correct route procedurally.

[Alison82]

Hi I called my local court today and they said use the N1 form

[Planner]

Originally Posted by Alison82

Hi I called my local court today and they said use the N1 form

As above. Some are saying N1 another N208. The difficulty is your only speaking to the office staff, no one with a legal backing.

Have a look at Going to court re: lack of TDS - update - LandlordZONE Forums it says the following;


Just thought you might want an update on my previous post.

I have received all of my documentation back from the court along with a cheque for my fee (they have already cashed mine!) informing me that the claim should be issued on a part 8 claim form. I used an N1 as directed by the Court and Shelter... any ideas on what the difference actually is? as far as i can see, the information requested on both is the same ?

I'm starting to think no-one - including the court is really sure how to go about this !