Help! Evicting a nightmare lodger!

SpiderLegs

macman said:

This is an interesting one, though I'm leaning towards the view that the LL is not in residence, and therefore a tenancy has been created, not a lodger arrangement. If so, the LL is doubtless in breach of numerous statutory requirements that are the responsibility of an LL, and specifically those of an LL running an HMO. Was a  GSC, EPC, prescribed info supplied etc? Deposit protected? I very much doubt it. If so the tenancy is not regularised
One thing is clear though: if it is a tenancy, it's not an AST, as the minimum term is specified as 3 months, not 6 months. And it's not an excluded tenancy. That means that no S21 or S8 is required to regain possession, and the tenant can be asked to leave at the end of the fixed period of 3 months.

I wasn’t aware an AST required a minimum term?
I understand that for the purposes of eviction under s.21 six months is the minimum term, which effectively makes a short term pointless, but why does a shorter term mean it’s not an AST?
What alternative type of tenancy would it be?

if there are options like that available why isn’t every LL using that method to bypass s.21 or s.8 requirements?

martindow

If a tenancy has been created, would the owner moving back in change the situation back to lodger/ landlord status?  I could imagine that once you have become a tenant you would remain so regardless along with the rights that come with that.

teachfast

It seems like the LL had created a real mess of a situation with that extra room and not staying overnight there much. Could get very difficult indeed if Shelter or another knowledgeable charity gets involved and starts reporting him.

pinkshoes

Having been a lodger in the past, I was under the impression that you can only have TWO lodgers and a third lodger would trigger the HMO requirements! My "live in" landlady generally only stayed 1 or 2 nights a week as she worked in London and tended to stay with her boyfriend there. 

Also, if you have more than 2 lodgers, this normally requires you to notify your mortgage lender, as lots of lenders have a clause about more than 2 lodgers. 

I would tread very carefully here... 

[Deleted User]

macman said:

This is an interesting one, though I'm leaning towards the view that the LL is not in residence, and therefore a tenancy has been created, not a lodger arrangement. If so, the LL is doubtless in breach of numerous statutory requirements that are the responsibility of an LL, and specifically those of an LL running an HMO. Was a  GSC, EPC, prescribed info supplied etc? Deposit protected? I very much doubt it. If so the tenancy is not regularised
One thing is clear though: if it is a tenancy, it's not an AST, as the minimum term is specified as 3 months, not 6 months. And it's not an excluded tenancy. That means that no S21 or S8 is required to regain possession, and the tenant can be asked to leave at the end of the fixed period of 3 months.

AST don’t have a minimum term. You could have an AST that lasted for 1 day if you wanted. However, with a short let the landlord cannot recover possession through the courts using the section 21 procedure within the first six months of the tenancy and that’s not just due to COVID that’s how it’s been since the 1996 Housing Act. 

https://landlordlawblog.co.uk/2017/04/05/tenancy-agreements-33-days-tips-day-13-term/

theoretica

There is also something to consider about more than one lodger and capital gains tax when the property is eventually sold.

CIS

SpiderLegs said:

macman said:

This is an interesting one, though I'm leaning towards the view that the LL is not in residence, and therefore a tenancy has been created, not a lodger arrangement. If so, the LL is doubtless in breach of numerous statutory requirements that are the responsibility of an LL, and specifically those of an LL running an HMO. Was a  GSC, EPC, prescribed info supplied etc? Deposit protected? I very much doubt it. If so the tenancy is not regularised
One thing is clear though: if it is a tenancy, it's not an AST, as the minimum term is specified as 3 months, not 6 months. And it's not an excluded tenancy. That means that no S21 or S8 is required to regain possession, and the tenant can be asked to leave at the end of the fixed period of 3 months.

I wasn’t aware an AST required a minimum term?
I understand that for the purposes of eviction under s.21 six months is the minimum term, which effectively makes a short term pointless, but why does a shorter term mean it’s not an AST?
What alternative type of tenancy would it be?

if there are options like that available why isn’t every LL using that method to bypass s.21 or s.8 requirements?

The 6 month minimum term on ASTs was ceased many years ago (1997).

What there is however, due to the 2015 deregulation act, is the requirement that a s21 notice can be issued in month 4 but can't take effect before month 6 of occupation, so in effect, they created a 6 month minimum by another route.

(note that the currently covid rules mean that a s21 must give 6 months notice than the 2).

steampowered

It sounds like your family member lives at her partner's house. Going to the property once a week to check the bins does not count as a "live-in" landlord. It could be an idea to move back into the property full time? 

In the current circumstances, it sounds like:
- The people living in the property might be viewed as tenants, not lodgers.
- The property is (potentially unlawfully) being let as an HMO.

If the people living in the property are tenants:
- It is not possible to serve a valid s21 notice while the property is being let as an HMO.
- Even if a s21 notice can be validly served, the current notice period is 6 months.

On notice period:
- I don't see how the lodger/tenant can be evicted before the 3 months are up, given that both sides agreed a minimum 3 month term.
- I don't see how your family member can want the lodger/tenant gone "within a week" when she agreed a 1 month notice period.

The best thing your family member can do is to serve notice on this lady saying she has to leave when the 3 months are up - and hope she accepts it! If she refuses to move on your family member could be in a real pickle and might want to consult a solicitor specialising in housing law.

Also, is the property mortgaged? If so your family member will be in breach of her mortgage terms.

Type_45

macman said:

This is an interesting one, though I'm leaning towards the view that the LL is not in residence, and therefore a tenancy has been created, not a lodger arrangement. If so, the LL is doubtless in breach of numerous statutory requirements that are the responsibility of an LL, and specifically those of an LL running an HMO. Was a  GSC, EPC, prescribed info supplied etc? Deposit protected? I very much doubt it. If so the tenancy is not regularised
One thing is clear though: if it is a tenancy, it's not an AST, as the minimum term is specified as 3 months, not 6 months. And it's not an excluded tenancy. That means that no S21 or S8 is required to regain possession, and the tenant can be asked to leave at the end of the fixed period of 3 months.

The landlord doesn't see the amount of time they spend at the property as an issue. They are there everyday, sleep at the property a couple of nights a week, clean the property everyday, and provide other services.

In addition, 3 of the lodgers (including the problem one) have moved into the property within the past month. So they don't know what the landlord's movements are. It wouldn't be easy to make a case that the landlord has moved out.

There have never been 4 lodgers before this month. Usually 2 or 3. And the intention is to reclaim the office room once this Lodger has gone and remain at 3 lodgers thereafter.

So I guess the issue is whether the problem lodger and her solicitor can show that she is in fact a tenant? If that is the case, then the 3 month notice will stand? And what is the procedure for evicting her if she doesn't leave?

Also, is she likely to be a lodger anyway? Does the HMO aspect change that in some way? 

SpiderLegs

Type_45 said:

So I guess the issue is whether the problem lodger and her solicitor can show that she is in fact a tenant? If that is the case, then the 3 month notice will stand? And what is the procedure for evicting her if she doesn't leave?

Also, is she likely to be a lodger anyway? Does the HMO aspect change that in some way? 

If this person gets a solicitor involved and there is enough ambiguity in their status then it’s going to take a lot longer than 3 months to get shut.
if it’s a clear clear cut AST job then it’s S.21 after six months, which is another six months (currently) plus many many more months to actually get to evict.
if it’s open to debate then the LL can spend lots of time and effort arguing the toss with a solicitor, during which there’ll be little chance of forcing eviction. Who knows how long that could go on for...

The easiest method might be just to pay the tenant to leave.