Tenant or Lodger

donaldfleming

A friend of mine has two two-bedroomed flats. One is in Glasgow and another is near Edinburgh.

His main residence is the flat near Edinburgh. He stays one night a week in the one in Glasgow.

He plans to rent the flat to someone on the basis that he (the landlord) has the exclusive use of one of the bedrooms, which he will use one night per week. The amount of rent charged will be reduced to reflect this.

The tenant/lodger will be responsible for paying the Council Tax and electricity. The landlord will be responsible for paying factors’ charges.

Could you please advise on the following:

1. Will the person the property is rented to be classed as a tenant or a lodger?

2. When calculating allowable expenses, will the landlord only be able to claim 6/7th of factors’ charges, to reflect private usage, due to the arrangement that he has the right to stay over one night per week?

Thank you for your anticipated advice.

CIS

The landlord would remain liable for the council tax charge and would have to recoup that from the tenant/lodger.

donaldfleming

Thanks for getting back to me.


Would the person paying the rent be classed as a tenant or a lodger?


Different tax rules apply:


If he/she is a lodger, the landlord can use the rent a room scheme, which carries an allowance of £7,500. And there would be no legal requirement for the landlord to register as a landlord.



If he/she is a tenant, the landlord can only earn £1,000 before being liable for tax on the rental income.

sevenhills

donaldfleming wrote: »

Thanks for getting back to me.


Would the person paying the rent be classed as a tenant or a lodger?

If the landlord has a main residence somewhere else, then I would say the person renting is not a lodger.
I am sure other will have an opinion.

weather83

Surely whoever rents the flat will be a lodger. If they were a tenant they'd have a tenancy agreement which would list them as the person who lives there. As a tenant they could change the locks, demand 24 hours notice before the landlord came round, be entitled to quiet enjoyment etc...

00ec25

weather83 wrote: »

Surely whoever rents the flat will be a lodger. If they were a tenant they'd have a tenancy agreement which would list them as the person who lives there. As a tenant they could change the locks, demand 24 hours notice before the landlord came round, be entitled to quiet enjoyment etc...

with respect you do not know the first thing about housing law and everything you have said is wrong in the context of the Op's question

I could give you a contract stating you are my slave, it does not make you a slave, since slavery is illegal under statute law, and statute trumps contract.

to be a lodger the occupant has to have a landlord who is residing in the LL's ONLY or MAIN home. Neither status applies in this case, since it is the LL's second home, not main home.
LL is liable for Council Tax since LL has the status of running a council tax HMO and that is a specific definition in tax law.

LL cannot claim rent a room allowance as it is not their main home.

LL can claim the property trading allowance of £1,000, but in all probability would be better off claiming actual costs under the normal method. LL's cost must be determined using a "reasonable" method (there is no defined basis) but 1/7th as time spent there would not be reasonable since there are a range of fixed costs which the LL incurs irrespective of whether the LL is present or not. The most common methods used are either by floorspace let or by number of rooms let. For a 2 bed flat that effectively means 50/50 cost split since the occupant does not have use of the LL's bedroom on the other 6 days the LL is not sleeping in it.

Housing law applicable to this is the tenancy shared house rules, not the lodger rules. LL retains the right to access the common parts of the flat without notice and to exclusive use of his bedroom. Tenant has the same rights because it is a house share.

elenemc

Perhaps somehow the landlord could also have another 'hat' as a tenant in a flatshare arrangement and the bills split accordingl. Surely he cannot have a lodger if not in landlord's main residence, so has to be a tenant.

G_M

As this is Scotland, and Scottish property law is very different to English, I cannot comment definitively.

And the following is based on Engish law - maybe helpful but may be way off!:

* the property owner cannot have two 'main residences'
* the E property is his main residence
* the G property is NOT his main residence
* the occupant could claim that 6 nights per week gives him effective 'exclusive occupation'
* even accepting that the owner is in occuation 1 night per week thus the occupant is 'sharing' with the LL, he could claim 'exclusive occupation' of his room (with access to the communal areas shered with the LL), hence a tenancy

It's a grey area (even in England). In Scotland, you need more specialist advice.

theartfullodger

Has this landlord done any training? Is he & his properties registered (up to £50k fine if not..)?


The Glasgow tenant (tenant, not lodger) will be a PRT tenant, even of the paperwork says otherwise.


See
https://scotland.shelter.org.uk/get_advice/advice_topics/renting_rights/renting_from_a_private_landlord/the_private_residential_tenancy


So landlord can only evict for the limited grounds listed: No "no fault" eviction (since 2017..)

G_M

elenemc wrote: »

Perhaps somehow the landlord could also have another 'hat' as a tenant in a flatshare arrangement and the bills split accordingl. Surely he cannot have a lodger if not in landlord's main residence, so has to be a tenant.

I admire your thinking!

But no - impossible for person A to be both landlord and tenant!

What might be possible (in England) a a legal arangement would be

* A (property owner) lets the flat to tenant B under an AST

* B takes in A as a lodger (at a reduced rent as occupation is agreed at 1 night per week

There are therefore 2 separate contracts
a) A to B: a tenancy agrement
b) B to A: a Licence to Occupy (ie lodger agrement)

theartfullodger

NB: In Scotland (sensible country..) a "lodger" is anyway a common-law tenant, eviction only possible via FTT or Sheriff court.
http://scotland.shelter.org.uk/legal/security_of_tenure/common_law_tenants_and_non-tenant_occupiers