One of the commentators to Day 1 of my 21 days of tips for Lodger Landlords asked what was wrong in allowing your lodger to have a tenancy, bearing in mind that you would be able to evict without getting a court order if you shared living accommodation. These matters deserve to be set out in a proper post rather than being buried in the comments.
Allowing a lock on the door
I said in my earlier post that you should avoid putting a lock on your lodgers door. I should say here that a lock does not equal a tenancy in all cases. For example I advised once in a case where the landlord was a sleepwalker and his lodger had a lock on the door to stop him walking in at night!
Generally one of the main signs of a tenancy is that the tenant has ‘exclusive occupation’ ie the right to keep everyone out of the property (in this case the tenant’s room), even the landlord. So if the door has a lock and the tenant is given a key, this will not be a tenancy if the landlord also has a key and regularly goes in from time to time, for example to do cleaning or to change the sheets.
However if the landlord does not have a copy of the key and has not entered the room for a couple of years, then there will be a strong probability that the occupier will be a tenant.
Reasons not to grant a tenancy
But what is wrong with this anyway you might ask? Here are a few reasons:
- It will mean that you are legally bound by the statutory repairing covenants set out in s11 of the Landlord and Tenant Act 1985. I discussed these on day 4 of my 21 days of tips. Under these the landlord will be responsible for keeping in repair the structure and exterior of the property, and the installations for the supply of utilities and space and water heating. Now I am not saying that lodger landlords should neglect these matters. And anyway the landlord will be vulnerable to improvement orders from the Local Authority if the property is in poor condition. However Lodger Landlords will not really want their lodger to have the right to sue them in respect of the condition of their own home!
- It will probably put you in breach of the terms of your mortgage or insurance policy. The questioner on the Day 1 post, also asked me if taking in a lodger would be deemed to be ‘subletting’ and also put you in breach. The answer to that, is that subletting is generally taken to mean granting a tenancy. However you should always speak to your mortgage company about your intentions, and your insurance company, whether you intend letting to a tenant or a lodger, so as to be on the safe side (as discussed on days 2 and 3). The point is though, that your mortgage company will not normally mind you taking in a lodger. They will not want you to sublet to a tenant though. So tenancies should be avoided.
- Finally, if you grant a tenancy you will lose control over part of your home. You will not be entitled to go in, for example, to check up on its condition and repair, without asking permission, and the tenant will be legally entitled to refuse and keep you out. This could be serious, for example if you need to carry out repair work. If you are renting a room to someone in your own home, it is better to use the more flexible lodger arrangement than lose control by allowing a tenancy situation to develop.
In some circumstances, of course, giving a tenancy will not be a problem. However, if you do decide to grant a tenancy, then let it be intentionally rather than by accident. Then you can charge accordingly and will know where you stand.
Note by the way that I have a lot of information about tenancies with resident landlords on my Landlord Law website.