Theoretical Resident Mesne Landlord/Lodger question

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Theoretical Resident Mesne Landlord/Lodger question

    If a tenant who has a lodger is away from their property to stay with elderly parents during the coronavirus lockdown, how long can they stay away from the property and still be considered a resident landlord?

    Allowing that they are still on the electoral roll, paying the rent and bills, and have all their possessions and receive post at the address from which they are absent; and that they are just sleeping in the guest bedroom at their parents house. So clearly the property from which they are absent is their main residence, and they have the intention to return, albeit at an uncertain date.

    However, could a lodger claim to have become a tenant and insist that their deposit be returned or protected? And could the lodger claim the same protections against eviction as a tenant?

    Does it change anything if this situation goes on for six months, or a year?

    #2
    From the Shelter website:

    Resident landlords


    To qualify as a 'resident landlord' the landlord must:
    • 'occupy the premises as a residence' – for tenancies that would otherwise have the protection of the Rent Act 1977.[4] It is possible that a landlord could occupy two premises as a residence
    • 'occupy the premises as his or her "only or principal home"' – for tenancies that would otherwise be assured or assured shorthold tenancies under the Housing Act 1988.[5]

    In either case, the landlord must be resident throughout the tenant's occupation. If the landlord moves out, then a regulated tenancy or an assured shorthold tenancy may ensue and this will be retained even if the landlord moves back in.[

    Comment


      #3
      There are two positions.

      One is that, generally speaking a tenancy or licence won't change from the type that was granted. The landlord has let a person a room and access to some shared space in their home.
      The intention was to create a licence and the person is an excluded occupant.

      Obviously however, if there is a change in the situation and the basic facts change, it would be inequitable to not give someone who was effectively a tenant the same rights as a tenant.

      There is no precise point where that would happen, it would be based on the facts of the specific case.

      One persuasive argument would probably be the level of rent paid, for example. If the rent for a room in a house shared with a landlord was £50 a week, while the equivalent whole property would be let at £200 a week, provided the lodger continued to pay £50 a week, you could argue that the same arrangement persisted.
      If the landlord raised the rent to closer to £200 a week, the situation might have changed at that point.
      If the rent for the room was always £200 a week, it might change as soon as the landlord moves out.

      There's a balance between what was intended and the effects of real life on that arrangement, without allowing landlords to move people into a property, live there for a month and move out, leaving tenants with fewer rights than the law intends for them to have.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        Jackson v Pekic 1990:

        Residence test for landlord exception same as residence test in Rent Act 1977 s2
        The Court of Appeal confirmed that, when courts are considering wheth-
        er a landlord is a resident landlord within the meaning of Rent Act 1977
        s12, they should use the same test as when deciding whether a statutory
        tenant continues to occupy premises as a residence for the purposes of
        Rent Act 1977 s2. Landlords who are temporarily absent must leave in the
        premises some personal and visible sign of their intention to return
        . In
        Jackson it was held that the landlord had not done this and her claim for
        possession was dismissed.

        Appreciate this is re. Rent Act tenancies but...

        Until & if this situation gets to court, no way of knowing for sure the outcome:
        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


          #5
          Thank you for your replies. Do you think the same criteria would apply where a mesne tenant rented two adjacent flats, lived in one and sublet the other?

          In such a situation, before the current crisis, the subtenants would be non-AST tenants, and any deposit held would not need to be (could not be) protected.

          However if the mesne landlord is absent from the property for a long period, the subtenants might think to insist on being issued an AST and for their deposit to be protected.

          (Or they may even think about making contact with the property owner directly in order to cut out the middleman, and possibly to pay less rent. But I prefer to assume the property owner has a profound wish to remain uninvolved, doesn't have any issues with the mesne landlord being away from the property given the current crisis and so long as the rent is still paid, and wishes the sublet set-up to continue.)

          So - it sounds like if the mesne landlord could show the intention to return (i.e., his own flat was fully furnished with his own belongings), then he would continue to be a resident landlord, whose sub-tenants do not have an AST and whose deposit doesn't need protecting. Even if he's away from the property for most of the year.

          Comment


            #6
            If both flats are dwelling houses, the sublet would still be an AST.
            The presence or absence of the other flat has no impact on an adjacent property.

            A residential landlord has to share space with the tenant so that there's no exclusive use of a dwelling house.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              Thanks again for your reply. But the situation is different if we're talking about a house which has been converted, rather than purpose-built flats. In the case of a converted house, the occupiers of the sublet flat will only be able to have a non-contractual tenancy agreement, not an AST, so long as the live-in mesne landlord is in occupation of the other flat. It's enough that they share a communal door and hallway.

              Actually I think my question is likely answered on this page on the Shelter website, which I've just noticed. I think this means I'm okay spending long periods away from the property, so long as it remains my primary residence and I've made clear my intention to return - it still doesn't become an AST for the sub-tenants and the deposit doesn't require protection;

              Resident landlord

              To qualify as resident, the landlord must have been in continuous residence in the same building (or another part of the same flat) since the start of the tenancy. A landlord living in a separate self-contained flat within the same building as the tenant will still be classed as 'resident' unless the building is a purpose-built block of flats. Long periods of absence will not prevent a landlord from being resident. Residence has been held to continue despite the landlord neither sleeping nor cooking at the premises.[5

              https://england.shelter.org.uk/legal...dent_landlords

              It does on to discuss situations in which the Resident Landlord may be absent; however none apply to the coronavirus situation, and they don't relate to mesne landlords (i.e. ones that don't own the property in question!).

              Comment


                #8
                As for this thread's pivot from discussing lodgers, to discussing mesne tenants, the reason is that I've been in both situations recently. Though my lodger moved out when the coronavirus situation kicked off, sparing any issues there, while the subletting of the other flat continues.

                Comment


                  #9
                  Originally posted by hamilton View Post
                  Thanks again for your reply. But the situation is different if we're talking about a house which has been converted, rather than purpose-built flats. In the case of a converted house, the occupiers of the sublet flat will only be able to have a non-contractual tenancy agreement, not an AST, so long as the live-in mesne landlord is in occupation of the other flat. It's enough that they share a communal door and hallway.
                  If we're discussing a theoretical point, you'll have to keep the goalposts stable, adjacent flats are not necessarily the same as a house converted into two flats, and most converted houses are split horizontally not vertically.

                  So, if you were to rent two flats converted from the same property, and shared access, the other occupant probably wouldn't be a tenant, they'd be an excluded occupier on a licence.

                  The Shelter citation isn't helpful to your case because in Palmer v. McNamara the issue was whether the landlord was resident if he was there every day, but didn't cook or sleep there. There he was considered in occupation, because he was there as much as possible, whereas you wouldn't be, you'd be absent from choice; a good choice maybe, but it is a choice.

                  I would expect the same thought process to apply as to whether you were resident in the other flat as if you (originally) shared the property with the other occupant.



                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                    #10
                    Sorry for shifting the goalposts, and moving from the theoretical to the concrete. Yes, I rent a converted house that's split horizontally into two flats, and which share a front door and communal landing. The tenants have signed a non-contractual tenancy agreement with me.

                    I think there isn't likely to be an issue, as I have a good relationship with the subtenants who have been in place for quite a few years. I can't imagine that, for example, they would claim damages over the deposit. But I do have a catastrophising mind (given the current state of international affairs, not always unhelpfully), and I just wanted some clarity. So I'll work on the basis that the non-contractual tenancy and unprotected deposit are still allowable, even though I'm away from the property.

                    As to the property owner, he is unmortgaged, I'd be shocked if he had any insurance, and he doesn't mind that I'm absent so long as the rent comes in. In fact it is his unwillingness to do anything regarding his property (including to instruct an estate agent) that has led to this situation arising. I originally lived in the flat which I'm now subletting. I moved into the second flat when it became empty as I preferred it, but kept on renting the original flat as a way to stop the house descending into anarchy, to control who my neighbours were, and to make a very slight profit.

                    I will return to my flat in early June at the latest and stay for a week or so. And depending how it goes with coronavirus, I'll then return to my parents for a few more months, before hopefully returning to my home for good. But we'll see!

                    Comment

                    Latest Activity

                    Collapse

                    Working...
                    X