residential licence agreement v AST

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    residential licence agreement v AST

    My house has an annex which was built for my father. It is attached but self contained with no communicating door to the house, and has its own Council Tax assessment. The only utility in common is water. Since my father died I have been letting it out on an AST which I was confident was correct but my tenant has recently given notice (after 10 years) and from reading other posts in the forums I am no longer so certain!

    Residential licence agreement or AST?

    Any advice please?

    #2
    The first question to ask is whether the arrangement is a licence or a tenancy. Whilst various factors come into play, the key one here is going to be whether the tenant has enjoyed exclusive occupation. Since you have always assumed you had granted an AST I think we can safely answer that question with a "yes" and conclude you granted a tenancy.

    The next question is whether the tenancy is one which cannot be an assured tenancy. The key question (subject to what I say below) is whether or not you are a resident landlord. For that you need to go to paragraph 10 of Schedule 1 to the Housing Act 1988 https://www.legislation.gov.uk/ukpga/1988/50/schedule/1 Unfortunately paragraph 10, which has to be read with Part III of the Schedule, is rather convoluted. Ignoring the detail, the main thrust of paragraph 10 is that the resident landlord condition is fulfilled if:

    (a) the dwelling is part of a building as to which the general consenus is that an attached granny annexe counts as part of a building

    (b) when the tenancy was granted the landlord occupied another part of the building as his home

    (c) at all times since the tenancy was granted the landlord has occupied another part of the building as his home

    If you comply with those conditions you are probably a resident landlord so long as none of the detail applies.

    If you are a resident landlord then the tenancy is not an assured tenancy and if it is not an assured tenancy it cannot be an assured shorthold tenancy.

    If you are not a resident landlord the tenancy will be an assured tenancy so long as all the other statutory conditions are fulfilled - see section 1 of the Housing Act 1988 https://www.legislation.gov.uk/ukpga/1988/50/section/1

    If the tenancy is an assured tenancy it will be an assured shorthold tenancy so long as it is not a tenancy listed in Schedule 2A of the Housing Act 1988 https://www.legislation.gov.uk/ukpga...50/schedule/2A

    Comment


      #3
      Very many thanks. Having looked at the Act I think I am (or will be in respect of a new tenant) a resident landlord IF an attached granny annex definitely counts as part of a building for these purposes. Are you aware of any support - cases perhaps? - for this. I have always assumed the opposite because it was built later and counts as a separate dwelling for council tax. How does an annex differ in this respect from the situation if I owned a pair of semis, lived in one and let the other? A pair of semis is surely one building?

      Comment

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