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.
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.
I gave our lodger a short hold tenancy agreement by mistake instead of nothing or licensee. We had to evict her as she lost her job, was a pain and not paid us for 3 weeks. Even though she shared toilets, kitchen, and entrance door with us for 7 weeks; the council and her are trying to get us for illegal eviction. I would def recommend to sign nothing as Tessa said. Even though you try to be nice, give a proper notice to your lodger with reasonable time, they can still try to have you down! crazy world, isn’t it?
I had a lodger in my home and I signed an AST with him, unknowingly. I knew the contract said ‘Assured Shorthold Tenancy’ but had no idea what it meant, however, I am beginning to find out. I was given the AST from a friend, who runs a property management company – I wanted to get something in writing when my lodger moved in. Eventually, I asked my lodger to move out since he was very disrepectful, rude and had damaged a few things (..there was an ink stain on his bedside table, large stain on the rug in his bedroom and he damaged my kitchen cupboard..it’s a designer kitchen!!). I didn’t return all of the lodger’s deposit due to some unpaid rent, share of bills and damages. The lodger has moved out. My now ex-lodger is taking me to court for 3 times the deposit since I did not put his deposit into the the deposit protection scheme. ..I was so nice to him and even let him stay on another week or so, until he found another place. And now…court action. Our court date is not set yet and I don’t have an outcome to share with you…but my advice would be, “Don’t sign anything!”
If he is a lodger, a genuine lodger who shares living accommodation with you, then it CANNOT be an assured shorthold tenancy. In which case the deposit does not need to be protected. Because the tenancy deposit regulations do not apply to lodgers.
Put in a defence saying that the claimant was a lodger and that the tenancy deposit regulations do not apply.
He was a genuine lodger and he shared my property with me. I have lived in the property at all times, the property is my only residence and I rented a bedroom in my property to this young man. I did get some advice from another solicitor and was told that the case law does not allow an AST to be AST, if there is a resident landlord – even if the contract says that it’s an AST. I will be filing my defense in the next few days and will put some words together, to the best of my ability, regarding the case law. I only hope that things will work out in my favour.. I can’t understand why his solicitors have filed with the courts – if this really is true? They are saying that the contract is binding and that it will supercede the Housing Act or case law?
Should I lodge the deposit into a deposit protection scheme anyway? To try and avoid 3x the deposit?
It sounds as if you have a good case but you understand I cannot give detailed advice on this blog, just a few general comments.
If you want me to consider the case and advise in detail you will need to use the advice service: http://lodgerlandlord.co.uk.gridhosted.co.uk/advice/
Heres a tricky one
I have managed to get myself into a real pickle
I am a tennant in a rented property and trying to do the right thing stupidley gave an AST to a lodger helping me pay the bills.
I now understand this is sub letting (at the time i wasnt aware of this)
What is worse is my lodger has turned into a monster and i want my house monster free, i have given notice for the beast to leave but now im sure im in for a fight.
Is there any thing i can do or am i totally in the smelly stuff .
Many thanks
You may be OK. Just because he signed a piece of paper with assured shorthold tenancy written on it, does not mean it IS an AST. In fact it can’t be, as you can’t have an AST with a resident landlord.
Have a look at some of the other posts here, for example http://lodgerlandlord.co.uk.gridhosted.co.uk/2010/03/09/the-five-main-differences-between-a-lodger-and-a-tenant/
Once you know whether it is a lodger or a tenancy situation you will then be able to work out how to get rid of him. If he is a lodger then see days 19 and 20 of my 21 days of tips http://lodgerlandlord.co.uk.gridhosted.co.uk/2010/02/23/21-days-of-tips-for-lodger-landlords-summary-of-posts/
If he really is a tenant (and I suspect he isn’t) you will need my Landlord Law site at http://www.landlordlaw.co.uk.
Please please help me. I am a resident landlord but I gave my lodger an AST by mistake, thinking that I should have something in writing. He became problematic and threatening and abusive and stopped paying rent, after three and half weeks of no rent and no notice to leave, he tried to kick my door down. I called the police who couldn’t do anything so I changed the locks. Now his solicitors are taking me to court for 3 x deposit. am I going to loose because I gave him an AST agreement instead of a lodger licencee?
@Jay His solicitors should know better. I would suggest you put in a defence saying that you are not bound by the tenancy deposit regulations as it was not an AST. Explain that you gave the AST form by mistake but in reality he was a lodger, and you were a resident landlord sharing living accommodation with him (assuming you did). And put in a counterclaim for the cost of repair for the door he damaged. Presumably you have a receipt for the cost of repair work or replacement cost for the door.
Thank you Tessa, very appreciative. He was definitely a lodger with all shared facilities and amneties (kitchen, toilet and bathroom).
Do you know if I would be allowed to use a voice recording in court to serve my defence, as only the lodger and I are on tape speaking where I clearly state to him I am his landlord, but his dispute is I am merely a leaseholder.
I don’t know how he found out this because, yes, it is true, I am a leasholder but I tried to explain to him I am permitted to remain in this apartment for 99 years, which he somehow already knew about (I think he was opening my post and then destrying them as there were several bills and things I didn’t receive) Anyway, I admitted to him I am a leasholder but I am still his landlord. But he says I am NOT and I broke the law by not revealing this to him and leaving the details out of the AST, even though I told him the rules laid out by the my freeeholder (my landlord is th housing association) only apply to me and do not extend to my lodger, his solicitor is adament I am wrong and is tantamount to “libel and perjury” if I say such things in court as he says I am subletting, even though my freeholder has specifically said they have no problems with me keeping a lodger, all I needed to do was inform my mortgage people, but his solicitor says I have a ‘duty of care’ to reveal who the real landlord is and should’ve put this in the AST agreement and that I should’ve protected his deposit and he says the court will easily find in his client’s favour and pick-pocket me for 3x the deposit. Would you be able to represent me please tessa?
I think you will find that the Judge at the hearing will take a different viewpoint. If your freeholder has no objection to your having a lodger then what is the problem?
If this person is living in a room in your flat or house then his landlord is not the freeholder but you.
BTW I don’t think I can comment further on this case in the comments section so if you want any help you will need to use the advice service: http://lodgerlandlord.co.uk.gridhosted.co.uk/advice/
My husband and I jointly own a house with our student son who lives in it. We have tenants with individual ASTs because both the NLA advice line and our insurers recommended this route rather than taking lodgers. However as I see it he is a resident landlord so are these not legal AST’s and should we use a lodger agreement when we sign up new ‘tenants’? Next year we have a couple who want to share a room which means we will have to register (and pay a large sum) as an HMO as there will be an extra person – does this still apply if we use licences rather than ASTs? (We do not have a mortgage company to worry about).
@Diane If your son is a resident landlord then they can’t be ASTs. If they share living accommodation then they will be lodgers. The HMO regulations still apply though, sorry! See here for info: http://lodgerlandlord.co.uk.gridhosted.co.uk/2010/02/07/day-7-will-taking-in-a-lodger-turn-your-property-into-an-hmo/
Tessa,
I am very new at this and would like advice. I will be completing on a new two-bed/two-bath flat in June. I’d like to rent out the spare room to a lodger from July 1st. I’ve contacted the developers (who are still the freeholders, I believe) and they said they don’t have a problem with this. My questions are:
1) Should I tell my mortgage company?
2) What insurance must I get, and what insurance should I get?
3) Should I tell my insurance company?
4) Reading all of these comments I gather that I shouldn’t have my lodger sign anything. Do I just conduct a background check, take their deposit, and ensure they set up a direct-debit then forget about it?
Basically, I’ve never done this before and have no experience with this whatsoever. I’m wondering if you can provide me with the basics to get started.
Thanks!!
@James You should read all the guidance on this website – thats what its for! You will find an index to my 21 days here http://lodgerlandlord.co.uk.gridhosted.co.uk/2010/02/23/21-days-of-tips-for-lodger-landlords-summary-of-posts/ and here are a few useful posts I have done afterwards
You ought to get your lodger to sign a loger agreement, you can get one here: http://lodgerlandlord.co.uk.gridhosted.co.uk/shop/
In connection with my comments under “The five main differences between a lodger and a tenant”:
Isn’t the question “Why you shouldn’t give your lodger a tenancy” somehow the wrong question, because what you should or want to give them or not is rather irrelevant. If you’re a resident landlord, they’re a lodger and you can’t give them an AST even if you wanted or tried to. If you’re not a resident landlord, they will be a tenant even if you give them a contract saying they’re a lodger. (???)
To Jay (above): In my layperson’s opinion, that solicitor either doesn’t have a clue what he’s talking about, or he’s just trying to scare you with some rubbish, which in legal terms is called ‘expressing an opinion’ and ‘acting in his client’s best interest’. In 90% of privately rented flats, the landlord is always a leaseholder (unless s/he’s only a tenant, which is ‘worse’). Keep us updated …
@Brend I agree it is impossible to have an AST if you are a resident landlord, but that does not mean you can’t create a tenancy. Not all tenancies are ASTs.