Lodger vs tenant

noisla

I have a house and I am trying to work out if I have a lodger or tenant. The issue is that I don't know if I "live" in the house.

Specifically: I own a 3-bed house in the UK, and when I lived there full-time, I had a lodger. Then I moved abroad with a new job, so I took a second lodger, and kept one bedroom for me, to stay there periodically. I wasn't sure how permanent my move abroad would be, but it's been 5 years, and now I will sell the house. The issue is now about the notice period for the 1 remaining lodger: can I give 1 month (as per the lodger contract) or 6 months (COVID regulations for tenants)? I will also need to disclose the arrangement on the property information form for the buyers.

Facts pointing to it being a lodger:

• The contract is a lodger agreement. It is for a bedroom plus use of shared areas, and states "The Lodger accepts that this is not an assured or shorthold tenancy as it is granted by a resident landlord"
• There's no lock on the bedroom door
• My boyfriend and/or I periodically go back and stay in the house, a few weekends a year, but recently 2.5 months to ready the house for sale
• All bills are in my name only (council tax, utilities, broadband, TV license, etc). It's all my furniture, kitchen crockery, pictures, and still a lot of personal possessions. All my UK 'life' is registered at that address.
• The house is my only UK home and the only property I own

Facts pointing to a tenancy:

• I spend most of my time outside the UK, in my small rented flat outside the UK
• I am not UK tax resident. I am also registered as a non-resident landlord and file tax returns every year accordingly.
• My mortgage company viewed it as a tenancy (I think they said I had to spend more than 50% nights a year in the property to be a lodger, but this is presumably a company policy and not law) 

I did try research on the internet, but it's all about second homes, and deciding which is the "principle primary residence". This CGT concept doesn't really exist for non-residents (since the CGT law change in 2015). Plus, I only own one property. I am struggling to understand the housing law (not tax law) position on this.

Thanks in advance for any advice 

theartfullodger

Tenant.  As you've presumably not served or could not prove you served the various notices (eg GSC, EPC, rice, deposit paperwork etc etc etc) any s21 invalid so eviction likely impossible.  Plus Covid .

You could bribe your tenants.  Were I one I'd want at least 10k to leave 


.... but I'm a greedy landlord

AdrianC

The key question, surely, is how many nights in the average week you sleep in "your room". 3-4 or more...?

If you spend "a few weekends a year" there. I think we can all agree that is not your main residence. You do not reside there.

Property ownership is nothing to do with where you reside. You clearly reside elsewhere. Whether that's inside or outside the country is irrelevant.

Not all contracts are enforceable at face value, especially when things they state in them as facts are clearly not true... Your best bet is to talk nicely to the people who DO live in the property, come to a mutual agreement for them to leave (which may involve an incentive), and then and ONLY then market the property...

oldbikebloke

agree with the above, no way are they a lodger, you have a tenant in a property where they share it with you on a few occasions per year.

i note you state you are on top of CGT. However, as you seem to have had more than one "occupant" at sometime, if that was before you moved aboard, and therefore whilst your occupation of the property would support it being your main residence and therefore them being a lodger, if you had two lodgers together at that time then you will lose part of your private residence relief that you can claim for the period to 2015. PRR is restricted if there is more than a solo lodger.

As you may be aware you can do the non resident calculation two ways, one will be better for you in that circumstance.

zagubov

Not an expert, but sounds like they're tenants not lodgers, and I'd investigate whether it's their job to be paying the tax to HMRC.

oldbikebloke

zagubov said:

I'd investigate whether it's their job to be paying the tax to HMRC.

OP states he is registered under NRL so it is not the tenants job to pay tax - OP's potential tax exposure is if he is claiming the rent a room allowance on the basis they are lodgers and it is his "home" - that would be a problem and should have been picked up by HMRC as RAR and NRL are mutually exclusive.

bris

I would stick with the lodger situation unless proven otherwise. A tenant does not have their LL staying whenever they want and there is nothing to say a homeowner with a lodger cant spend time away from home.

I admit its borderline but not clear cut in any way that a tenancy exists here, the chances of the lodger claiming otherwise are probably pretty slim as they are obviously comfortable with the current situation of the homeowner coming and going when they please.

getmore4less

What does the person you want out think?

Are they claiming they have a AST. 

2.5 months getting the property ready. Are you still there now? 


Do  they know you want to sell? 

You have had 2.5 months to address the issue asking if they will leave. 

greatcrested

Step one is a discussion with the occupants, explain your plans, and discuss potential mutually acceptable end date(s) for the contract(s).

If you and they can agree, then the legal definition is irrelevant.

If they are uncooperatve, say they don't want to leave, claim to be tenant entitled to 6 months notice, then you have a problem.

You could try treating them as lodgers and serve notice on that basis, bu they are likely to ignore that.

Ultimately only a court could decide, based on th facts (not on what the paperwork says).

My own opinion for what it's worth is that it's 80% likely a judge would decide they are tenants.