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  • Deposit Protection

    AST or Licence ??

    Hi Guys,

    I filed a small claim for the value of about 1K for return of a small charge taken from my deposit and 3x compensation.

    Unfortunately, the defendant appointed a Solicitor and now a Barrister, I thought I had a tight case until I read the extremely wordy defence given by the Barrister (I’m not easily intimidated).

    My case:

    Student living in PRIVATELY owned accommodation split into shared flats, occupied a room. Signed a licence to occupy agreement. Paid rent for a term. Only one room inspection. Argued I had a AST not licence therefore deposit should have been protected.

    I’m no amateur, my claim is COMPREHENSIVE and I can tell the Barrister knows this as his main arguments are quite abstract which make it difficult to gain an understanding of my position.

    Main Defence:

    All the residents are students, you have to be a student to occupy the residence. No exclusive possession.

    The barrister talks about student’s halls owned by educational institutions not requiring security of tenure (which I am aware of), so the PRIVATELY-owned accommodation should be treated the same (can he make this point?).

    The accommodation relies on my being a student so If a fail to a student 'occupancy' can be taken which apparently disproves exclusive possession (I don't see the relevance to exclusive possession).

    He also makes reference to other things such as guest restrictions and room inspections but many High court test cases I mention in my claim support my case confidently.

    I estimate the costs the defendant has spent in legal fees so far has out stripped my claim and it will only cost me 150-210 to continue (which would be a negligible loss if I lost). Do I stand a chance of success now that the defendant has gone major legal on me, any thoughts?

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    "occupied a room".  How is that not exclusive possession? What further services were you providing that you claim make it non-exclusive, please, or were they sharing with someone else?

    Sounds like an AST to me (But IANAL..) .  Suggest you look up Street v Mountford...

    https://en.wikipedia.org/wiki/Street_v_Mountford

    &, to quote Lord Templeman

    "" The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade. "" i.e. calling it a licence don't make it a licence.

     I have yet to find a purveyor of 5-pronged forks...

    Also try Shelter's "Tenancy Checker" tool...

    https://england.shelter.org.uk/get_advice...cy_checker

    Others will hold alternative views..

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    Hey,

    Apologies for the confusion, Im the tenant, no services were provided, the flat was shared between 5 people (across a floor) and I occupied my room solely.

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    Barrister is an idiot

    If the property you have is lived in by you even if 1 day a month  and you are able to access any part of the property then they are lodgers

    If however they have the right to refuse you permission to enter any part of your property then you have a tenancy

    There should be no locks on doors unless you have keys to access the rooms anytime you wish.

    No lodger has the right to refuse entry by the live-in LL.

    Any lodger who has the right to exclusive possession is a de facto tenant

    Even though a deposit from a lodger is not legally required to be protected  I believe it is perfectly possible to use a deposit scheme to protect a lodger deposit.

    This essentially  provides peace of mind for both parties safe in the knowledge that any dispute would be arbitrate by the deposit scheme

    Personally I reckon this barrister is on a hiding  to nothing.

    Now I don't know what his rates are; but if he could be persuaded to act for you I would hire D Smith.

    I can think of no finer legal counsel that knows his stuff about housing law.

    But I guess he is a very busy chap

    But I would put D Smith up against a barrister anytime

    The fact that your lodgers are students is irrelevant.

    They are either lodgers or tenants.

    Different regulations apply.

    A tenant  subject to being given permission  by the LL  owner is perfectly able to take on LODGERS.

    But this depends on what any lender or council would allow.

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    Paul,

    Do you mean David Smith of our legal partner, Anthony Gold Solicitors?

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    Yes indeedy!!!!!!!

    Everyone on PT should be aware of his status and invaluable contributions to this site and so many other areas of the PRS

    The only other high profile personage I know of that could be considered  very knowledgeable about the PRS  is Tessa Shepperson.

    But David is involved in so many aspects of the PRS including Govt that you would  struggle to find someone who let us say has so many knowledgeable  fingers in so many pies! !!

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    Hi,

    I think there may be some confusion. Im the tenant, the LL is using the barrister. The property I occupied is similar in structure to a student halls, but is subdivided into flats (5 occupants).  We shared 1 kitchen, bathroom and toilet but the rooms were sole possession. The landlord is private ltd company, no live in LL and no services.

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