'Single private dwelling' allow lodgers or need variation of deed?

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    'Single private dwelling' allow lodgers or need variation of deed?

    Hi,

    I have recently bought a 3 bedroom flat with 1/9th share of the freehold (9 properties in total). I have moved 2 lodgers in but a couple of the other freeholders have said this is a breach of the lease.

    They have allowed leaseholders to rent out the properties as a whole on ASTs for a minimum of 6 months.

    I spoke to the freeholders and they are ok with the lodgers but they are worried that if they allow the breach (single private dwelling and trade business)' then it would set a precedent and it could weaken their protection if someone bought one of the flats to turn it into a large HMO or let it on AirBnB.

    The clause they refer to states:

    'And also will use and occupy the demised premises as a single private dwelling and private garage used in connection therewith and for no other purpose and in particular but without prejudice to the generality of this restriction shall not allow the demised premises to be used for any illegal or immoral purpose or for any trade businesses or professional purpose whatsoever and shall not exhibit or displayed any placard notice....... etc etc

    I am the landlord to my lodgers but the limited company that owns the freehold is in turn my landlord and Im its tenant.

    There are no other clauses in the lease around usage and no clauses that all leases must be the same.

    Reference
    https://www.gov.uk/government/public...dent-landlords

    sec 2.3 states:
    "If you are a private tenant, you should check the terms of your tenancy. If there has been nothing agreed to the contrary, the tenant would be free to sublet. However, in practice most private tenancies prohibit subletting: because there is something in the written tenancy agreement to this effect (either absolutely or without the owner’s permission) and/or because assured (including assured shorthold) periodic tenancies have this prohibition implied. But a tenant can of course ask his or her landlord for permission anyway. A tenant who has sublet in defiance of these prohibitions cannot use this as justification for denying his own tenant or licensee her rights, for example by evicting her illegally. Also, these restrictions only apply where the intended arrangement is for the tenant to “part with possession” of some of the property: if, for example, you were informally having a friend to stay, or taking in a lodger who you would be providing services to, you would probably not be giving exclusive use of any of the accommodation. Again, if any of these types of tenancies comes to an end, so generally will the sub-tenancy."
    Questions
    1. If I am a live in landlord and I haven't 'parted with possession' am I still in breach as the above exert suggests not?
    2. As a live in landlord (we share meals, kitchen, bathroom, living room) can we be seen in the eyes of the law as a single household and therefore not in breach of the single private dwelling clause?
    3. Is there merit in their argument that a breach that is known but isnt enforced can set a precedent for other types of usage such as Airbnb short term lets or HMOs?
    4. Would it be possible / advisable to have a variation to my lease for freeholders to provide explicit permission for me to take in lodgers but still keep the protection in the original clause (which is what the other freeholders are afraid of losing)?
    5. If there is a mechanism to change the lease, what amendment would you suggest so that the original protection is not lost but I can take in a lodger?
    6. Any idea what this might cost and recommendations of a property legal specialist who could do the work without too much expense?
    Thanks.

    #2
    If you have lodgers, you are licensor, not a landlord.

    I'm not convinced that having a lodger breaches the lease, but not sure that it doesn't.

    If it does, the ability of the freeholder to waive the breach or vary your lease depends on whether he covenants with the other leaseholders to enforce that covenant. I think that an explicit licence would not set a precedent.

    Comment


      #3
      Originally posted by leaseholder64 View Post
      If you have lodgers, you are licensor, not a landlord.....................
      Think that yes, they are a licensor, but also the landlord of the licensee/lodger. See e.g.

      https://england.shelter.org.uk/housi...enting/lodgers

      £5 says someone (leaseholder or tenant..) already has a lodger that the freeholder doesn't know about. (But don't tell freeholder!)
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        I think theartfullodger must know all this information since "the - lodger" is built into his name.

        It seems the lodger is an excluded occupier ( means no legal rights to stay )

        Comment


          #5
          what would you recommend is my best course of action? should i just take it to a property lawyer?

          Comment


            #6
            Before you decide to see a L & T solicitor ( who will cost a lot) , I suggest you send an enquiry with relevant subletting extract of your lease to the Legal Advisor at LEASE ( www.lease-advice.org ) and ask if a live-in leaseholder + 2 lodgers can remain as a single household ( i.e not coming under HMO rules which applies to off-site leaseholders )

            Comment


              #7
              LEASE is not going to be able to rule on HMO rules, although I don't think HMO rules are at issue here, anyway.

              Comment


                #8
                Thanks. What is an L&T solicitor?

                Comment


                  #9
                  Landlord and Tenant.

                  Comment

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