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SASH_Law
SASH_Law, Lawyer
Category: Property Law
Satisfied Customers: 4659
Experience:  LLB (Hons)
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Do I need to secure a deposit from a subtenant as a

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Do I need to secure a deposit from a subtenant as a sublandlord? I have covered the the entire deposit for the house, but I didn't have any deposit schemes for securing the subtenants deposit. Is this a legal issue, if so, what can I do now?
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 1 year ago.
I would like to wait longer for the answer please !

Hi, I'm Lea and I have reviewed your query.

Do you still need assistance with this? If yes, can you tell me if this is a property you live in yourself where you have rented out spare rooms, or a property you rented and then re-let as a whole to someone else?

Please bear in mind this is an email service and not a live chat so responses may not be instantaneous. I am not available for calls, but in all cases it is very likely you can be helped online.

Customer: replied 1 year ago.
I live in the property with my partner and I have legally sublet one room out. I have paid for the whole deposit for the house, and it's protected at the landlord.

Does the person you rented a room to have shared use of the bathroom, kitchen and other facilities?

Customer: replied 1 year ago.
she had access to all communal areas in the house.

Was the intention for her to be a lodger or a subtenant - i.e. is she a joint tenant along with you and your partner?

Customer: replied 1 year ago.
She is a subtenant. I have rented out a spare room in the house for her. She is not a joint tenant, as the master lease is between me and the landlord.

There is a difference between a subtenant and a lodger, which is what I am trying to establish here - it sounds to me as though she is a lodger, in which case she is an excluded occupier and as such you do not have to protect her deposit as she is sharing the property with her landlord (i.e. you).

Customer: replied 1 year ago.
In the sublease agreement, we have defined her as a subtenant. She has exclusive rights to her room. In this case, as she is a subtenant, did the deposit have to be protected?

If she is a subtenant, then you should protect her deposit. (With the qualification that the subtenant agreement is an AST).

Customer: replied 1 year ago.
I couldn't find any deposit schemes where I could secure it. She has been living in the propert for 5 months, is it too late to securet it now? Or what should I do

There are only three government schemes - one of them would have taken it.

You can either secure it now - and provide the subtenant with the relevant information and risk that she might decide to try and sue you for non-protection (if she did I'd suggest you defend on the basis that she's a lodger), or you can repay it to her and then ask her to pay it again and then protect it within 30 days of receipt. Of not hold a deposit at all if you are comfortable with that.

Customer: replied 1 year ago.
Can she techniacally be a lodger, if she was defined on the contract as the "subtenant" ? Could you please tell me the name of the government scheme?

If she has an AST she's a subtenant.

The schemes are here: https://www.gov.uk/deposit-protection-schemes-and-landlords

Customer: replied 1 year ago.
I have read this : "Many tenancy agreements prohibit tenants from subletting or require the tenant to obtain the landlord's written consent before doing so. This Sublease is not an assured shorthold tenancy (AST) because lettings by resident landlords fall outside the scope of ASTs." Then I can't decide if the sublease agreement is AST or not. What do you think?

You told me she was a subtenant - if you have given her an AST, then she's a subtenant.

My view is she is a lodger.

But the question is what would a judge decide she was if she claimed that her deposit should be protected and was not. Why take the risk?

Customer: replied 1 year ago.
The contract is called "Commercial Sublease Agreement" and it's a fixed term contract, for 8 months, where she is defined as 'Subtenant'. Does this class as AST?

You can't use a commercial lease for residential property.

In my view, as I have said, she's a lodger.

Kindly take a moment to rate positively - thank you.

SASH_Law, Lawyer
Category: Property Law
Satisfied Customers: 4659
Experience: LLB (Hons)
SASH_Law and 2 other Property Law Specialists are ready to help you