AST or lodging?

RAS

Thanks, 

Your response is a bit mixed.

Those advising you it is a tenancy are for the most part landlords or work in housing.

If it is a tenancy as I personally think, then the deposit should have been protected. 

If you are inclined to think it is a lodging, then the deposit does not need to be protected.

You can't mix and match.

Either way the repairs/maintenance needs doing.

Can we also check whether your friend is doing exams/assessments this summer? As if the LL has the right to terminate prior to the end of the fixed term, the status become very important.

The LL can terminate a lodging relatively easily, in line with the written agreement. Which could make life difficult for your friend.

They can give 2 months notice if it is a tenancy, and there is no obligation for the tenant to leave at the end of the notice, or at the end of the fixed term.

I assume your friend has access to a specialist housing advice officer in either their student union or university/college?

If you are still unsure, the friend needs to contact those officers or Shelter, let them see the housing document AND provide them with all the details about which we have asked. They should be able to clarify the matter first hand.

no_moolah

Ath_Wat said:

I'm a little confused by all this as surely a lodger is even less liable to pay for  repairs.

Yes, I apologise, the initial question was convuluted but I wanted to establish the type of tenancy so that they could confidently assert their rights as a tenant. I should also add that when I asked whether they 'should pay for their repairs' I meant 'should just decide to pay for them so they're done', rather than 'should have to pay for their repairs'

canaldumidi

no_moolah said:

Is anyone aware of how the income declaration works (or should be working) and the implications if it turns out that it is in fact an AST? I imagine that might lead to some reluctance from the landlord, who might insist it isn't and threaten some kind of legal action or eviction. This is partly why I haven't shared any information yet, a bit concerned that it could lead to some form of retalliation...

If your friend were a lodger, and the total annual rent was less than £7,500 pa, then the Rent-A-Room scheme would apply and the LL need not declare the income. See here.

However, since the friend is a tenant (95% certain a court would so rule), the LL should be makig a self assessment tax return and declaring the income.  If anything, that puts your friend in the strong position since he can threaten to inform HMRC....

https://www.gov.uk/government/organisations/hm-revenue-customs/contact/report-fraud-to-hmrc

no_moolah

Thanks RAS, I have just used Shelter's excellent online chat in which I asked hypothetical questions based on the situation and they think it is an AST. They gave the reasons already outlined here (no shared facilities, driveway does not count as a facility), so thank you everyone for your help. The advisor also said the deposit should be protected.

I will pass this on and they can decide if they want a second opinion from the university, but suspect they may already have a similar response from Shelter.

sourpuss2021

There's still definitely a type of tenancy where no facilities are shared, yet the deposit does not need to be protected.

It is what is known as a contractual non-AST tenancy agreement.

The typical example would be of a house divided into self contained flats which share a hallway.   Resident landlord lives in one flat, and their non-AST tenants in the other.  Landlord can take a deposit and it won't need to placed in a government scheme.   In fact it can't be.

Whether that applies in this situation may depend on whether the landlord's house and the outbuilding are considered to be separate addresses or part of the same building.  So again whether it's been correctly assessed for council tax is important.

RAS

We already know that the friend's home is NOT part of the same building.

sourpuss2021

RAS said:

We already know that the friend's home is NOT part of the same building.

Sorry, I should have written 'the same property" rather than building.

We know that the annexe is detached from the main building.   And that it is not separately rated for council tax.

But is it part of the same property?  It could well be.   Just as many garages are separate from the house but still part of the same property.

And in that case the tenant may well  be a non-AST statutory tenant of a resident landlord.  In which case the deposit does not need to be, in fact cannot be protected.

saajan_12

no_moolah said:

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.

What is the actual issue here? If its about repairs, then the LL is usually responsible for repairing the property and providing habitable accommodation (subject to exclusions if specified in the contract), regardless of whether its a lodger / excluded occupier / tenant setup. If the LL fails to repair, then report the issues in writing, allowing reasonable timescales, and ultimately get the issues fixed yourself or leave. 

Tenants do have more rights re deposit protection, protection from eviction, excusive access, etc, but I'd argue those when there's actually a breach / unreturned deposit. Escalating the argument now won't get the repair issues sorted. 

no_moolah

I realise my initial post has raised more questions than it needed to and I should have read it through again, I'm sorry.

The question was whether to advise them:

a) pay for the repairs and acccept that ruffling the landlord's feathers by continuously reporting issues may lead to retalliation, and you have minimal rights as a lodger so don't take any risks

b) do not pay for the repairs as you have an AST and the landlord is obliged to fix them whether they like it or not. If they do not fix them, you can follow the procedure on Shelter's website

The extra bits about deposit protection arose as part of the research and should have been kept separate, as somebody has mentioned. The same goes for the council tax.

RAS

Paying for repairs without the LL's permission is not a good idea, whether you are a tenant or lodger.

What exactly is the problem?