Lodger rather than tenant?

redlady_1

Good Lord, is this still going on??

I originally looked at this thread because I was thinking of letting out my spare room and wanted to know the pitfalls (week only not weekends) and have stumbled into a bloody playground.

chucknorris

redlady_1 wrote: »

Good Lord, is this still going on??

I originally looked at this thread because I was thinking of letting out my spare room and wanted to know the pitfalls (week only not weekends) and have stumbled into a bloody playground.

I know it's pathetic isn't it, I had hoped that after my 2 posts saying it was silly and childish that would have ended it.

On your query there is nothing to worry about as you are clearly living there, and in any case it's the lodger who isn't there full time. It's not bad idea if you can find someone who is working away from home, you will have some income and also the place to yourself during the weekend

Wee_Willy_Harris

chucknorris wrote: »

First of all it looks as if 'my first bright idea' as you put it has gone the distance as Planner (thanks planner) has come up with what appears to be a possible workable variation on that theme, which was afterall the whole purpose of the thread.

I am fully aware of the eviction process as 2 years ago I evicted a tenant from one of my flats in Battersea.

Now, moving onto you, I was prepared to let our disagreement go, as indicated by my two posts below:

It might suprise you that I actually agree. I got sucked into something when I should have been big enough to laugh it off and simply walk away. Like you say there are far more important things to get on with.

Is it getting childish and too drawn out? Yes of course it is, I played my part in it too I realize that.


You however have decided to continue with the childish feud. Note that I have not yet said anything derogatory towards you in this post you can decide where we go from here, put it behind us and walk away or continue. Personally I think it's ridiculous, however that doesn't mean I am going to sit quietly while you to keep having digs at me, I will not. It's your decision where we go from here, if you decide to continue just remember in the future that it was you not I that chose that path.

I merely said that you should....

Wee_Willy_Harris wrote: »

Look into it well. After all, your first bright idea didn't exactly go the distance and, in case you need reminding, illegal eviction IS a criminal offence which, in extremis, carries a prison term of 2 years.

... Seems like good advice to me, when a poster so sure of the legislative pitfalls can't correctly identify either the legislation or the extent of the penalties for transgression, both of which have been in place for well over 20 years. I would take a moment to read and digest Schedule 1 of the 1988 Housing Act if I were you. After all, it's your neck on the line, not anyone elses.

tbs624

tbs624 wrote: »

Where LL is using property as his/her only or principal home

Planner wrote: »

. If you arent renting all the house anfd if this is your principle home at the time the 'tenancy' is granted...

Planner wrote: »

Its actually a combination of 'piddly cupboard' and 'principle home at start of tenancy rather than 'piddly cupboard in isolation! I can imagine landlords doing 'piddly cupboard' but never going to the trouble of 'principle home'!

It's the principle of whether or not the property can be properly decreed as Chuck's principal residence Planner;)

Planner

tbs624 wrote: »

It's the principle of whether or not the property can be properly decreed as Chuck's principal residence Planner;)

Agreed. Its all about Principal.

As Chuck lives there at present, still intends to live there in two years time before holidaying in spain, will live there when the agreement is signed prior to holidaying in Spain - I would suggest it would be hard to argue its anything but their principal home at the time of signing.

I felt the need to post as eveyone took immediate exception to Chucks question, stating with 100% certainty its an AST - when it may well not be.

Planner

Wee_Willy_Harris wrote: »

... Seems like good advice to me, when a poster so sure of the legislative pitfalls can't correctly identify either the legislation or the extent of the penalties for transgression, both of which have been in place for well over 20 years. I would take a moment to read and digest Schedule 1 of the 1988 Housing Act if I were you. After all, it's your neck on the line, not anyone elses.

Sorry, you missed the Schedule 1 point COMPETLEY, Offering 100% assurance to the O/P that what he proposed was 100% an AST- yet you consider the transgression of moi typing '2' rather than '1' the more serious? How odd.

clutton_2

OMG - there's THREE of them at it now....

the three stooges.. but without the funny bits...

N79

I have not wanted to wade into this thread but I will - I can't resist. I am not going to say who is correct because ultimately that is for a judge to decide but I will address the process that a judge will use to determine if this tenancy is not an AST. I will give my opinion at the end.

Chucknorris should consider carefully that the court will be biased against him and will seek to grant the T security unless he can demonstrate that the T does not have an AST. As this is a statute determined tenancy, the paperwork and contract between Chucknorris and his T will not be worth the paper they are written on in assisting the courts decision and so can be safely disregarded (if the T is, in fact a lodger, then the correct agreement would be a licence to occupy).

Much reference has been made to schedule 1 of the 1988 housing act. This schedule lists the tenancies which can not be ASTs. One is rentals with a residential LL. It must be understood that the default position is that an AST is created. Therefore the act sets out 4 tests which must be met in order for the residential LL exception to the creation of an AST to apply. It is worth looking at these in detail. They are the following. As the legal text can be a little complicated I have placed in red a short plain English description of each text:

(a) that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and

This simple means that the T does not have exclusive occupancy of the entire property (eg the LL has their own bedroom to which the T does not have a right of occupation).



(b) that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—
(i) in the case mentioned in paragraph (a) above, also forms part of the flat; or
(ii) in any other case, also forms part of the building; and


This simply means that the LL must have been using part of the property as their only or principle residence at the time the tenancy is granted (but may, for example, not have the right to enter and use the T's room). Courts will take a pragmatic view of someones principle home. Factors such as amount of time the property is used will be very important here, as will whether the property is the family home, where children reside etc.

(c) that, subject to Part III of this Schedule, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which,—
(i) in the case mentioned in paragraph (a) above, also formed part of the flat; or
(ii) in any other case, also formed part of the building; and


Simply, the property must remain the LL's only or principle home for the duration of the T's occupation, although there are some permitted exemptions (which we will address in a minute).

(d) that the tenancy is not one which is excluded from this sub-paragraph by sub-paragraph (3) below.


This section is about stopping LLs cheating Ts out of assured or regulated tenancies using this section. It is not relevant here.

Clearly on the date that Chucknorris would create the licence to occupy all of these criteria would be met. Indeed, while Chucknorris remains in residence all of these criteria would be clearly met and the T would remain a lodger. The question we now must address is what happens when Chuchnorris travels to Spain.

One Chucknorris is in Spain clearly test 1,2 and 4 are still met. However, meeting test 3 now depends on Chucknorris being either able to rely on one of the exemptions provided or being able to convince the court that this property is still his principle residence. We will now look at these exemptions to see if they are relevent. There are three and the legal wording is quite complicated. Again, in red is my explanation.

(a)
any period of not more than twenty-eight days, beginning with the date on which the interest of the landlord under the tenancy becomes vested at law and in equity in an individual who, during that period, does not occupy as his only or principal home another dwelling-house which forms part of the building or, as the case may be, flat concerned;

This is a straightforward clause that says that if the LL changes to someone who does not have the property as their only or principle home then for a period of up to 28 days then there is no change in the tenants status, they remain a lodger.



(b)
if, within a period falling within paragraph (a) above, the individual concerned notifies the tenant in writing of his intention to occupy as his only or principal home another dwelling-house in the building or, as the case may be, flat concerned, the period beginning with the date on which the interest of the landlord under the tenancy becomes vested in that individual as mentioned in that paragraph and ending—
(i) at the expiry of the period of six months beginning on that date, or
(ii) on the date on which that interest ceases to be so vested, or
(iii) on the date on which that interest becomes again vested in such an individual as is mentioned in paragraph 10(1)(c) or the condition in that paragraph becomes deemed to be fulfilled by virtue of paragraph
18(1) or paragraph 20 below,


whichever is the earlier; and
This means that if the new LL informs the T within the 28 days provided in exemption a that they intend to take up residence (or that the original LL may retake residence) then they have up to 6 months in which to move in before the status of the T changes. This section also states that the 6 month exemption ends if the LL moves back in or if the affairs are put in trust.

(c)
any period of not more than two years beginning with the date on which the interest of the landlord under the tenancy becomes, and during which it remains, vested—
(i) in trustees as such; or
(ii) by virtue of section 9 of the Administration of Estates Act 1925, in the Probate Judge or the Public trustee].

This section covers the death of the LL and means that if the LL dies then the the tenant will remain a lodger for 2 years so that the LL's heirs do not end up with a tenant with any security of tenure.



None of these exemptions would seem to apply in this case so Chucknorris would have to persuade a court that the property remained their only or principal residence throughout the period of the tenants occupancy.

Since I believe that Chucknorris will be spending most of the year in Spain with his family I would suspect that this will be a hard sell to any court and if he is relying on being able to evict the tenant as a lodger (with no security of tenure) then he should take careful legal advice from a specialist tenancy law solicitor to advise him on the probabilities that he will be able to justify this property as his only or principle home given his exact circumstances.

My opinion, for what it is worth, is if Chuchnorris and his family spend most of the year in Spain then most judges will not grant an exemption from the housing act under schedule 1 and will rule that the T has an AST with a 6 month fixed term and thus the S21 process will be required to evict them.

PS - I have not done a minute proof read of this post. If anyone wants to comment on any typos feel free - but I will ignore you.

chucknorris

clutton wrote: »

OMG - there's THREE of them at it now....

the three stooges.. but without the funny bits...

I think it's over now Clutton (I could be wrong of course)

Wee_Willy_Harris

Planner wrote: »

Sorry, you missed the Schedule 1 point COMPETLEY, Offering 100% assurance to the O/P that what he proposed was 100% an AST- yet you consider the transgression of moi typing '2' rather than '1' the more serious? How odd.

Appology accepted. However, you missed my point COMPLETELY.

Chucknorris assumes his licensee is a tenant and evicts accordingly = no problem.

Chucknorris assumes his tenant is a licensee and evicts accordingly = illegal eviction = possible BIG problem.

And, of course, that BIG problem would be his, not yours, not mine. I've merely suggested that he should examine the matter further which, considering the possible outcome, seems like very sensible advice. I'm sure you would agree.