After your lodger has gone

Your lodger has left, but she seems to have left half of her belongings behind.  Or you may have evicted your lodger and be wondering what to do with all their things.

The first thing to remember is that they do not belong to you.  They belong to the lodger.  So if your lodger asks for them, you should give them to him.

This may create difficulties if your lodger has been forcibly evicted and you are worried about letting him back into the house.  In these circumstances, it is best to arrange for the police to be there, so he cannot do anything malicious or perhaps refuse to leave.

If, as perhaps may be more common, you lodger has just gone leaving these things behind, what should you do? Legally you are a position quaintly known by lawyers as an ‘involuntary bailee’.

Well, you do not have to leave the items in the room.  It is quite in order to pack them up and put them somewhere else.  After all you will want to re-let the room, and your new lodger will not want them there.  So pack them up nicely, either in bin bags or perhaps some cardboard boxes, and move them to wherever you have some space.  Perhaps in the garage or under the stairs.

However you probably don’t want them cluttering up your house for long.  You will probably either want to throw them away, or (if they have any value) sell them.  You can do this, but only if you first carry out the procedure set out in an act called The Torts (Interference with Goods) Act 1977.

This act says that if you want to dispose of goods belonging to another person, you must first write to them asking them to remove the goods.  The letter should say:

• What the items you hold are
• Where they are being held, and
• How long they will be available for collection before you dispose of or sell them

You need to give a reasonable period of time for their collection.  I would suggest at least 14 days.  The act says it must be “such as will afford the bailor a reasonable opportunity of taking delivery of the goods“.  You also need to give them details of how to contact you.

So far as delivery of the letter is concerned, this act was passed in 1977, which was before  text messaging and emails were available.  It says that the letter should be sent by recorded delivery and therefore, if there is any chance that the lodger is going to come back and complain, this is what you should do. However there is no harm in following this up with an email and text message if you wish.

What if you don’t know where the lodger has gone to?  Well, the act says that

• provided you are certain that the ‘bailor’ (lodger in your case) owns the goods and
• provided you have  failed to trace or communicate with the bailor with a view to giving him the notice, after having taken reasonable steps for the purpose,
• you are entitled to sell or dispose of them.

My normal advice is to instruct a tracing company on a no trace no fee basis, and to keep the letter where they say they can’t trace him  (if they do trace him, you can send the letter).

It is important however that you do not just chuck the things away. If the lodger comes back and is able to prove that the good they left behind were valuable, they will be able to sue you for compensation. Best to get someone independent to take a look at them to confirm that, for example, they are just rubbish.

Anything valuable should be sold for the best price (often selling at auction is a good idea). If the items are small, for example jewelry, it is perhaps best not to sell them at all but just to keep them. If they are not collected within six years, then you can dispose of them safely as the lodger will no longer be able to bring any claim against you.

Make sure that you keep a careful record of everything you have done and keep it safe.  Just in case.

Lodgers meals – my experience

When I started taking in lodgers, they were mostly foreign students on short English courses at my local university. Part of the deal was that I would provide them with meals and talk to them over dinner. Talking in English with a ‘family’ was an important part of their experience.

As someone who has always been rather keen on cooking I rather enjoyed this. I was living on my own at that time so it was nice to cook for more than one person (me). It was also a great topic of conversation as the (mainly) female students would talk about the food they had at home. Very occasionally one of them would cook a meal for me which was nice (although Gina did destroy my electric whisk while making an apple cake).

Most students loved the meals. I would try to fly the flag for British food, particularly as some told me that other students on their courses had complained about the appalling meals provided by their landladies.

I suppose the only problem was the (Muslim)  Turkish student, who told me that he ate ‘everything’ and then when I served a pork casserole, said that he didn’t eat pork. When I reminded him he had said he ate everything, he said it never occurred to him that anyone would eat pork! He was very nice about it, but I didn’t tell him about the pork dinner he had eaten the previous week …

Although I enjoyed the cooking, my students were only with me for a few weeks (the longest stay was for two months) and I was quiet pleased not to have to do it any more when they left. So think very carefully about providing meals for long stay lodgers.

Pros and cons of providing lodgers cooked meals

The good points about providing meals is that

• you can charge extra for them, which will increase you profits from lodgering
• it you have a family or partner who you cook for anyway, it will not be much extra work
• if you enjoy cooking it is nice to have someone else appreciate your food
• you can get to know your lodger better chatting over the dinner table,
• if you don’t like people messing about in your kitchen you can justifiably ask them not to use it

The bad points are that

• it can be a lot of bother particularly if you don’t like cooking much or are not very good at it
• you may prefer not to become too friendly with your lodger

I have to say that when I had long term lodgers, they used to do their own meals.  However it can be a good source of extra income.  Make sure you have some decent cook books for inspiration for the inevitable days when you can’t think of what to do (Delia’s Smiths Complete How to Cook is highly recommended, as is The 30-Minute Cook by Nigel Slater)

Lodgers breakfast

Whether or not you provide a cooked dinner, it is always a good idea to provide breakfast as it is so easy. None of my girls wanted a cooked breakfast (far too fattening!). I would lay the table in the kitchen the night before and leave things out for them so they could serve themselves when they got up. It worked very well.

You should provide as a minimum:

• fruit juice
• tea, coffee and sugar laid out near the electric kettle (include some herb teas)
• sliced bread, and a toaster so they can make toast if they want
• butter, marmalade and a selections of jams and honey
• a selection of cereal (those variety packs are good until you learn what they like) and
  a jug of milk
• fresh fruit

other things you could include are

• yogurts
• tinned grapefruit
• dried fruit such as apricots and prunes
• muesli
• cheese and/or cold sliced cold meat such as ham
• croissants

Lay the table nicely (perhaps with a cheerful tablecloth – a PVC one will cut down on washing, and some flowers in a vase), so it is welcoming when they come down in the morning, and they will be as happy as Larry.

Do you cook for your lodgers? What sort of things do you do? Do you have any tips for readers?

PAT stands for Portable Appliance Testing.

A portable appliance is basically any appliance with a plug attached to it. For example personal computers, and their equipment (monitor, speakers etc), kettles, irons, leads, cables, toasters, printers, etc

There is a very good and informative web-site here from which you can see that PAT testing is mainly an obligation of employers as part of providing safe working conditions.

However your lodger will expect to be able to switch on his bedside lamp without having it blow up in his face, so you might want to think about it if you rent rooms to lodgers. As a supplier you should comply with the Electrical Equipment (Safety) Regulations 1994.

If someone supplies electrical appliances as part of a service (in your case the renting of a room) they need to make sure that they are safe. New items should be all right for a while, but if you are renting out a room to a new lodger and you are using appliances which have been used before, perhaps by your previous lodger, it is worth making sure that they are safe. Portable appliance testing will do this.

In particular:

• if there is any damage to the cable covering
• if the plug is damaged
• if any of the joints are taped or look damaged
• if the coloured insulation of the internal cable cores show where they enter plug?
• if the appliance seems to have been used in conditions for which it is not suitable (e.g. if it is wet)
• If there is any damage to the external casing of the equipment or are there loose screws or parts
• if there is any evidence of overheating (e.g.. burn marks or discoloration)
• if the off/on switch is damaged

Or indeed if you are just a bit worried, you should get your portable appliances tested. Best to be safe than sorry.

Getting Portable Appliance / PAT testing done

In order to make it cost effective, you should get all your appliances done at the same time, perhaps after one lodger has left and before the next one moves in. It is not hugely expensive, you can expect to pay about £25-35 which will cover testing about 10-20 appliances. You can find companies which do this online or in Yellow Pages, plus there is a helpful directory here. Some companies specifically advertise a service for landlords.

Finally, make sure that you keep a record of the appliances tested, so if there is any problem later you can prove that you have had it done.

Have had your appliances tested in this way? Have you ever had any problems where you wish you had? Did you have any problems finding a suitable firm to do the testing?

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Your lodger has gone – she cleared out her room, signed the visitors book and drove off.  But you keep getting mail for her.  What should you do about it?

Ideally you should speak to your lodger about this before you leave.  For example

• If they get a lot of mail, tell them that you cannot be responsible for forwarding this and that they must arrange for a postal re-direct
• If they only get a modest amount of mail, ask them to leave you some address labels with their new address on and say that once these are used up you will return post to sender (an idea suggested by Lynda who commented here)
• Say that you will forward post if they leave a forwarding address for a limited period (say a month) and that after this post will be returned to sender.

What you do not want to do is get in a situation where you are having to constantly forward post on a long time after the lodger has left.  That is not fair on you.

If you decided not to forward mail any more, or if you have not been given a forwarding address you should NOT open or destroy the mail.  It is not your property and you are not entitled to deal with it. If you cannot give it to its owner it should be re-posted marked ‘return to sender’.  Or ‘not at this address’.

The advantage of returning it to the sender (if the address is not on the envelope the mail staff will open it to find out their address) is that this will, hopefully, inform them that your lodger is no longer there and that they should update their records.

If you have house rules for your lodgers, you could usefully put something there about you procedure for dealing with this.

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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?

You have decided that you are absolutely fed up with your lodger and you are going to serve a notice to quit on them (as discussed in day 19 of our 21 days of tips). You have written it all out. How do you go about serving it?

As you share a house with the lodger, you don’t want to put it in the post (and posting notices isn’t advisable anyway as it is impossible normally to prove that it has been delivered).    There are a number of possibilities:

• handing it to them
• leaving it on their bed
• leaving it on the table in their room
• sticking it on their door

Personal service is generally best.  Also you can arrange for someone else to be present with you, so that if your lodger is minded to lie and say that they have never had it, you will be able to prove otherwise.  Indeed, the very fact that you had someone there will often mean that the lodger will know that this is not something he can do.

However happily not all lodgers are liars. In many cases you will prefer not to risk a confrontation, and will just leave it in his room.  You can still have someone with you when you leave the notice on the bed (or where ever) to be a witness just in case.

Finally, make sure you keep a copy of the notice or less, and keep a careful note of the date and time that you served and how you served it.  You can get your witness to sign and date this also.  Hopefully your lodger will leave as requested, but it is as well to keep careful record just in case.

Have you ever had to serve notice on any of your lodgers?  How did you do it?  Were there any problems?

Lodger eviction

In Day 20 of my 21 days of tips for lodger landlords, I described a procedure for evicting lodgers without getting a court order. When exactly can this be used?

The answer to this lies in the Protection from Eviction Act 1977.  This is the act which says that all evictions of residential occupiers must be done through the courts, and that if a residential occupier is evicted without a court order, then this is a criminal  offence. (Note that in this post I will use the word ‘occupier’ a this covers both lodgers and tenants).

However the act recognises that not always be appropriate to force someone to get a court order for possession, and sets out a number of exceptions to the general rule.

These are set out in section 3 of the Act, and they are known as ‘excluded tenancies and licenses’.  They include:

• where the occupier (whether or not he or she is a tenant) shares living accommodation with the landlord, and
• where the landlord was living at the property as his main (or ‘principal’) home and sharing living accommodation with the occupier from immediately before the occupier started living there to the time when the occupation ends, and
• the shared accommodation is not just storage areas, halls, corridors or staircases, as these don’t count. It must be proper living accommodation such as a sitting room, kitchen, and/or bathroom (and preferably more than just one room).

Excluded tenancies and licenses also include those granted for a holiday, so the procedure given on Day 20 will apply also if you provide B&B accommodation to holiday makers.

Note that if you have let accommodation in your home which is entirely self contained (and which is not holiday accommodation let to someone on a genuine holiday), then you *will* need a court order.  For more information on this, see my Landlord Law web-site.

Tenancy deposits and lodgers

Although I wrote about this on Day 16 of my 21 days of tips for lodger landlords, I think it is worth repeating.

• The tenancy deposit regulations only apply to assured shorthold tenancies
• It is legally impossible for someone renting a room in your home to have an assured shorthold tenancy
• Therefore tenancy deposits taken from lodgers do not need to be protected on a government authorised tenancy deposit scheme.

Expanding a bit on this, most lodgers will not have a tenancy at all, as they will not have ‘exclusive occupation’ of their room.  See more of this on Day 1 of the 21 days of tips and my five tips on how to avoid creating a tenancy.

Even if your lodger does acquire a tenancy of his bedroom, it is not possible for this to be an assured shorthold tenancy.  This is because the Housing Act 1988 specifically excludes tenancies with resident landlords from being assured shorthold tenancies.

The only time an AST can be created where the landlord lives in the same building is where that building is a purpose built block of flats and the landlord lives in one and the tenant in another.

So if your lodger tells you that you are breaking the law by not protecting the deposit he has paid, do not worry, he is wrong.

Avoiding a tenancy in a self contained letting

I did an advice recently for a client who wanted to let out some self contained accommodation in his house (effectively a ‘granny annex’) but was anxious to avoid creating a tenancy. Although this is covered in part here,  I thought that it might be worth repeating some of the advice I gave him:

To prevent a tenancy being created you need to ensure that the occupier does not have ‘exclusive occupation’ of the property/rooms.  This means that you have to have built into your contract, reasons for you to go in and out of them (respecting your occupiers privacy) as of right (ie without having to ask permission first).  Here are some suggestions:

• Tip 1 – Provide clean sheets (and perhaps towels)  You do not need to make the bed. but it gives you a excuse to go in and out of the room/s without question.  Make a practice of actually going into the rooms rather than just leaving the sheets in the passage outside
• Tip 2 – Provide room cleaning.  If you do not want to do the cleaning yourself, employ a cleaner (and set the rent so the cleaner’s costs are covered).  Make it clear to the occupier that the cleaner is part of the deal as you want to be sure that the property is being properly looked after
• Tip 3 – deal with putting out the occupiers rubbish for them.  For example provide black bin bags and say that you will be going into their kitchen area to collect them once or twice a week (depending on when the bin men come).
• Tip 4 – require access to test the smoke alarms regularly.  Needless to say, you will have to have smoke alarms fitted for this, but you should have this anyway
• Tip 5 – provide breakfast and /or other meals from time to time, which can be served in their rooms if you prefer.

Where you are renting out self contained rooms in your home, where you do not share living accommodation with the occupier, you do need to be careful to prevent a tenancy arising (particularly if it is important that there is not tenancy, for example if this is a requirement of your mortgage company).

However so long as provide at least two services such as those listed above (ideally at least clean sheets and cleaning, and preferably more than two) you should be all right – so long as you continue to provide them.  If you stop, the occupation may convert to a tenancy.

Note also that as you do not share living accommodation, the eviction procedure set out in Day 20 of my 21 days of tips, cannot be used.

I did a talk recently at the Landlord & Buy to Let Show in London (5/3/10), and it was clear from some of the questions asked, that, even though I covered this topic on Day 1 of my 21 days of tips, people are confused about the difference between a lodger and a tenant.

I am not surprised!  It is a typical lawyerlike distinction, and can be confusing even for the lawyers.  However it is quite important. Why?

• Because a tenant ‘owns’ the property, room, or whatever, for the period of his tenancy or lease
• The tenant therefore has the legal right to keep the landlord out of the property (or room)
• The landlord may have to get a court order for possession to evict
• The landlord has various repairing duties which he cannot pass on to the tenant (this comes from the Landlord and Tenant Act 1985, section 11)

So how can you tell which is which?  Here are the five main differences:

1. A lodger lives in the landlords home and shares living accommodation.

So if the occupier lives in the granny flat and only shares a hallway, he will be a tenant.

2. The landlord must live in the property throughout the time the lodger is there.

Therefore:

• if you own a house where you rent out rooms and live elsewhere, but then decided to move in yourself when one of the rooms become vacant, this does not turn your tenants into lodgers.  They will carry on being tenants, even though you, their landlord, are now living in the property.  (Although people who move in afterwards may be lodgers)
• Likewise, if you move out while the lodger is still there, then the lodger will become a tenant. This is only if you move out permanently, its all right to go on holiday for a few weeks.

3. The lodger must not have ‘exclusive occupation’.

This means, basically, that you must not let him put a lock on the door of his room (or indeed any other room) and keep you out.  You must maintain the right to go in the room from time to time, although respecting your lodgers privacy at all times.

If your lodger has a lock on his door and you do not have a key, and you have not entered the room without his permission for several months or years, then he may well have a tenancy.

These three are the most important differences. However there are two other signs that someone does not have a tenancy:

4. If the landlord provides services

This is not absolutely essential, and not all lodger landlords do this.  However if certain services are provided, then the occupier cannot in law have a tenancy.  The normal services which can be provided are any of the following:

• providing clean towels and sheets
• room cleaning (ie the lodgers room)
• meals, generally this is just breakfast but sometimes evening meals are provided also

This is why you do not have a tenancy of your hotel room when you go on holiday.

I would *strongly advise* that all lodger landlords at the very least, provide clean sheets, and use this as a reason to enter the room at least once a fortnight.

5. The landlord can move the lodger to a different room in the property

This is the least reliable of the five signs, and signed agreements may be negatived by actual conduct.

For example, if your lodger has in fact stayed in the same room for 20 years, has had a Yale lock on it for the past 15 years, and you never go in there, the fact that he may have signed a piece of paper when he first moved in saying that you have the right to move him to another room will probably not mean much.  He is almost certainly be a tenant (unless  you provide meals).

On the other hand, if he moves to the back bedroom when your Auntie Maud comes to stay (because she prefers the front bedroom), this would be a strong indication that he is a lodger and not a tenant.

I hope this post has made things clearer.  Or do you still have worries?  Please leave a comment if so.

Note that you can read a lot more about landlords and lodgers in my 21 days of tips for Lodger Landlords.  If it is clear that you have a tenant rather than a lodger, then my Landlord Law web-site service should help.