AST or lodging?

no_moolah

Good morning

I've been asked to do some research for a friend who is a bit overwhelmed by a confusing (to me, anyway) rental situation. They were wondering if they should pay for their own repairs because the landlord is not getting things done. I have some knowledge of these things but would be grateful if any more experienced individuals could chip in.

They are renting an annexe from a private landlord, detached from the landlord's property but sharing a drive for access. No access to landlord's house, no services provided by the landlord like laundry, meals or cleaning. I believe this is on the first floor and the ground floor is storage, not accessible by tenant. The question is whether they are a tenant or a lodger. THey have a written agreement that outlines the terms of the tenancy (fixed duration etc). To me, this sounds like an AST and not a lodging arrangement, but there has been no deposit protection. In fact no documents provided at all other than this written agreement (I believe an electrical safety cert would be required too).

There is also apparently no council tax for this separate building, but it is equipped as a separate living space with kitchen sink and toilet. This seems unusual, because the VOA says that ‘By law, any building, or part of a building, which has been constructed or adapted for use as separate living accommodation must have its own banding.'

Knowing someone that has one, I am also aware that 'granny annexes' typically have planning restrictions about who can live in them, usually a family member. The council tax made me curious so I checked it out. It turns out this building does not have planning permission to be used as a separate dwelling at all.

My thinking here is that the landlord is classing them as a lodger, so from the landlord's view, the building does not have to be registered for council tax nor does it need planning permission because they see it as an extention of the main home. However the government website says that 'In law, a resident landlord letting is one where the landlord and the person he or she lets to live in the same building.' To me, because this is a self-contained property not attached to the main building and sounds like an AST (or at least not a lodger). It probably also needs its own council tax band and should have had planning permission (presumably also needs to follow certain building regs). All that aside, which is very confusing, the tenant should know their rights either way.

So a long way round from the orginal question...but would I be right to advise the lodger/tenant not to pay for repairs because they have an AST so the landlord is responsible? I don't know what to say about the other parts so recommended they book a call with a Shelter expert. Thank you in advance.

simon_or

On the balance of probability, it sounds like a tenancy to me.

You are right to suggest speaking to Shelter, they are really good at giving actionable advice.

sourpuss2021

More knowledgeable people will be along shortly.   But just to say that the agreement could be neither lodging or AST. 

So long as the landlord is deemed to be living in another self-contained part of the same building it will likely be a contractual non-AST tenancy agreement.   

Under such an agreement there is no requirement (or possibility) for a deposit to be protected in an AST scheme.

As for who is responsible for repairs, they will still generally be the landlord's responsibility, but if the property is particularly desirable or hard to find elsewhere and the rent is reasonable, then a smart tenant may find themselves paying for a few smaller things from time to time.

RAS

Hi

This is potentially a bit of a hornet's nest. A lodger can be given a longer fixed term agreement, and recent cases suggest that if the LL terminates the lodging agreement before the end, the LL can be successfully sued.

If the Council find out that your friend is occupying an independent dwelling and not paying Council tax, they will bill your friend for the unpaid Council Tax going back to the start of the tenancy. The LL may also be using the lodger term for tax reasons,  claiming the rent is within the rent a room scheme rather than taxable income

There was a thread here where the LL believed they had a lodger, but the previous owner had used the top floor as an art studio, so it had a sink and an ensuite. Neighbours had noticed that the lodger had installed a microwave, and the LL found themselves with a new CT valuation and liability for the independent dwelling....

Unwittingly, your friend has probably accrued a CT debt.

You say there is no deposit protection, but not whether one was actually taken? 

I doubt they will get very far with the repairs. How soon can they move out?

no_moolah

Thanks all for your help so far. I apologise, I should have been clear that this building is not connected to the main house. And yes, a deposit was paid before they moved in. Unsure of the amount but presumably one month's rent. I also should have said they are a full time student so thankfully not liable for council tax and could move out in June, but think the tenancy runs to August.

RAS

Glad they may not have an issue with Council tax debt. Have they got an exemption letter from their college/university? If their local authority use on-line exemption applications, I'd suggest they talk to their college or university about the situation, probably the people who deal with loans and finance. If they continue to study next year, it should be OK, but if they graduate this summer, they may need to know when the exemption ends.

Need to read the tenancy agreement to find out when they can actually terminate the tenancy early and others here can advise if they remain liable if they move out before the tenancy ends.

Do they have a receipt for the deposit? Any sort of incoming inventory?

theartfullodger

It's (assuming England or Wales) an AST.  Regardless of what the paperwork says.

Bet landlord is getting loads of things wrong ,.. (Tax, insurance, electric or Gas safety etc etc etc)

Artful: Landlord since 2000

sourpuss2021

What kind of repairs are we talking about here?

Is the rent cheap, reasonable, or extortionate?

no_moolah

Ok thank you again, this is all very helpful. I'm told there is no receipt for the deposit, but it was a bank transfer so I'm assuming that would count for something? Also, no inventory was given at check in. I've seen the tenanncy agreement and there is no break clause for the tenant, though it does state that the landlord has the right to terminate early. There is no timeframe given for this.

As for the repairs, I believe its an ongoing sanitation and waste drainage problem, which is why the tenant was considering paying for it just so it's fixed. I get the impression this might be a bigger issue, as I know it's been a problem for a while now and we are talking months here. That being said, the rent for the area seems about average.

canaldumidi

Thereare several issues which need separating

* the contract.Since the accomodation is self-contained, is not shared with the LL, no services are provided (eg cleaning), and is clearly not a holiday let, it is an AST. It matters not a jot what the written contract might say - the circumstances dictate the legal arrangement. Of course, in case of dispute only a court could decide.

Conseqently the deposit should be protected, and all other AST-related regulations should be complied with by the LL. See
Post 7: New landlords (1):advice & information for a list of these .

* repairs. See

Post 2: Repairing Obligations: the law, common misconceptions, reporting/enforcing, retaliatory eviction & the new tenant protection (2015) plus the Homes (Fitness for Human Habitation) Act 2018

In particular, as you raised it, see Shelter's process for a tenant to undertake repairs themselves and reclaim the cost from the rent. Note the process must be followed.

https://england.shelter.org.uk/housing_advice/repairs/what_to_do_if_your_private_landlord_wont_do_repairs

* Council Tax.

This is separate. If the accomodation is not separately charged there is no CT topay. However if the council determines the accomodation should be separately charged it is the occupant who is liable. Having said that, if (and only if) the contract between occupant andlandlord specifies the LL is liable for any CT, the occupant can reclaim from the LL  any CT they are forced to pay.

Rumana03

To be a lodger they need to share something..such as kitchen, bathroom etc. Your friend is not sharing anything apart from the driveway so they are a tenant.
As a landlord I have had lodgers previously. You have to ensure that they are given the correct contract.

It sounds like this landlord is treating them as a lodger and hoping they don't realise that they are in actual fact not a lodger. What kind of repairs are needed?