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 may 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.
What are your views on this? Are there any other reasons not to grant a tenancy which I have left out? Have you ever experienced any problems with inadvertent tenancies?
If you are a landlord or a tenant, you will help and guidance on Tessa's other sites, Landlord Law and the Landlord Law Blog.
I think you have clarified very well the differences between a lodger and a tenant. Sharing is the point to remember. I already learnt a lesson not having a written house rules – unwritten one has no value at all.
Do you have any suggestion how to predict the heavy handedness of a lodger who is not melicious? All taps became loose and leaking at the base, plugs were unhooked. Plastic base of Shower screen on the bath ruined. Not wanting to
use sitting room to dine or watch TV and confining themselves in the room without drawing curtains or openning windows. My mistake was allowing TV in their room.
I think it’s lodger’s life style which make a good or bad lodger. How can we find out in advnce?
Now a days family background does not determin it – it’s set by the indivitual. Sometimes appearances can be deceptive too.
Nili Reynish
The best way to find out about a prospective lodger is to talk to referrees rather than just rely on a written reference. Sometimes you can find out a lot from someone’s tone of voice or what they don’t say.
Talking to a landlord prior to their current one might also be helpful. If the tenant is troublesome the current landlord will not want to do anything which will prevent them moving out.
Tessa, wonderful website, many thanks. Re Tenancy or not. I find this a real tricky one. I have a (granny) annexe to my house. It is self -contained but there is an adjoining door. Have been OK with tenants until now; and am taking present one to court for possession (wont pay rent, wont leave!)So have been searching websites to see if there would be a better arrangement in future than the AST I have at present. I don’t trust strangers now so don’t want to give them a key until I know them better. I could get a cleaner once a week included in the rent. Would this help for a different type of tenancy?
PS re Landlord Access I have the following in my tenancy agreement which I thought would give me the required access???
5 (i) To allow the landlord or anyone with the Landlord’s written authority to enter the Property at reasonable times of the day to inspect its condition and state of repair, if the landlord has given 24 hours written notice beforehand
Hi Valerie
I don’t advise on tenancy stuff here (my http://www.landlordlaw.co.uk site is for that) but will just say that even with the clause you state, a tenant has the right to keep you out if he wishes. Also if it is a granny annex, you probably don’t have an AST, so there may be problems with your possession claim if anyone spots that.
I did do a special post on avoiding a tenancy in a granny annex (on 22 March 2010), so can you please read that and ask any questions there please.
My partner and I own a house which is divided into two flats; We live mostly in the top flat though we have our spare room for visitors in the downstairs flat. Through the summer the front doors between the flats remain open with the porch door only locked (too cold to do this in winter). We go through the groundfloor flat to get to the garden and laundry. Two rooms in this part of the house are let out, one man has an ASH tenancy which has lapsed into a SP, he is on benefits. The other has no agreement and is a lodger. The thermostat for the central heating is in his room, and we need to go in there to adjust it (0f course we always ask first, but if he’s not there we just let ourselves in with our key). There is a third man living in this flat too; he is a long standing friend (goes back fifty years) who came to live some twelve years ago for a very cheap rent in repayment for looking after the entire house (upstairs and downstairs)for us and to collect the rents when we are out of the country for six months each year. Up till three years ago I always cleaned their bed linen and cleaned the flat, but it just got too much for me, (I’m 75) so now I get cleaners to do it and ask the men to contribute toward it (£8 each pm, out of a total cost of £50) I do still wash their kitchen towels when I do my own washing, and bring in their washing if it’s on the line and about to rain. I have keys to all the rooms and access them from time to time when they are out to check on the condition of the rooms. My spare room is also in this flat and when I am in the garden or laundry room I will use the kitchen and bathroom to save me going upstairs. My question is: I have assumed that both men without agreements are lodgers, but as I don’t actually live in the ground floor flat (though we have never really looked at the house as two flats, more a house with two kitchens and two bathrooms)are the two men without agreements lodgers or are they actually common law tenants? This is causing me a lot of worry because we are needing to sell as the house is just much too unmanageable and I need to know which would be the correct notice to give them?
It sounds to me as if they are some sort of serviced accommodation, which would not normally be a tenancy. Probably an old style Notice to Quit would be the notice to use. However it sounds like a complex situation and I could be wrong. Have a word with the solicitors who will be doing your conveyancing, they should be able to advise.