Lodger or tenant?

[COYS1882]

Hi everyone,

I moved out of my property that I own together with my brother and decided to rent out my room where I act as the landlord and receive the rent but my brother still lives there. We signed a lodger's agreement and I was named as the sole resident landlord despite the fact I do not live there.

Anyway, of course, circumstances change and I have broken up with my girlfriend. I therefore want to move back but the lodger doesn't want to leave. I understand that tenants have greater protections than lodgers and would therefore be interested to know whether my lodger is indeed a lodger or whether the circumstances would mean he is a tenant? If the latter, could I serve notice to him advising that my brother is now the resident landlor

EDIT: for additional clarity, the lodger does not have exclusive possession of the property and shares the lounge, kitchen and bathroom with my brother.

[theartfullodger]

You are named as sole landlord. You do not live there. Tenant.

So lodger's agreement is sham, actually an AST but missing or incorrect paperwork, impossible to evict.

Who has been declaring rent income to HMRC please?

[Hudson01]

If the tenant finds out what he really is then you may have some issues.

[COYS1882]

theartfullodger,

This agreement has only been in place for 3 months and no tax return has been completed yet. Given your advice, what if my brother offers to declare the income and I serve notice advising that my brother is sole landlord and receives the rent instead of me?

[theartfullodger]

Your esteemed tenant may be viewing (free, open to all forum).

No other advice...

[COYS1882]

Your esteemed tenant may be viewing (free, open to all forum).

No other advice...

Sorry, I've just studied Schedule 1 of the Housing Act 1988 and sections 17 and 18 seems to suggest that if we are both trustees then we are resident landlords? Or am I misinterpreting and in fact, section 17 is only saying we would have had to serve notice of our intention to include my brother as a landlord within 28 days of the commencement of the tenancy?

[KTC]

You do not live there, you were the sole landlord at the start of the occupation agreement, there's no scenario where the occupier have no security of tenure that requires you to go through court to evict.

Stop trying to come up with sham argument to deny the occupier's their legal rights. It won't work.

[Lawcruncher]

"We signed a lodger's agreement and I was named as the sole resident landlord despite the fact I do not live there"

If the arrangement is a tenancy and "we" refers to you and the tenant, I think you may have a problem arguing you are a resident landlord. Since only you are named as tenant the implication is that your brother has his room and you have yours and you let your room.

[theartfullodger]

Even if you moved back in they would still be tenant. It's the situation when tenancy started that matters.

Of course if brother offers new tenancy at lower rent, providing tenant surrenders their tenancy, moved out for a couple of days ..... But I somehow doubt you'll all understand the paperwork needed -at start - to enable s21 eviction.

Or bribe tenant to leave.

Did they pay a deposit? Penalty of up to 3x if deposit protection not complied with....