Is a Lodger a Tenant, and are they Subletting.

[bob369]

A head landlord creates a tenancy to one person for a flat.

That one person lives at this flat as their main residency, but lets a room to a lodger, this 'immediate' 'resident' landlord shares the kitchen and bathroom with this Lodger.

I understand a Lodger is not a Tenant, they are an 'excluded occupier' (and also not an excluded tenant).

Any written agreement between the Immediate Landlord and Lodger cannot be a Tenancy, but would be a Licence to Occupy.

Is it correct to say that the term Subletting would only be applied where a Tenancy is created, with exclusive use, ie an AST.

Seems lots iof conflicting information out there, any thoughts appreciated. Thanks.

[ash5050]

I think it covers both as an AST and lodger agreement are both lettings, just different types. I think, if this is what you ask, if subletting is against the contract then it wouldn't be OK to rent out a room.

[KTC]

"A covenant against underletting is not broken by the grant of a licence or by permitting lodgers to occupy premises, because lodgers are licensees only and not underlessees. Such a covenant is broken whenever the lessee, by the grant of an underlease, parts with the exclusive possession of the premises or, if the covenant is so worded as to apply to part of the premises, any part of the premises.

...

In practice, covenants against underletting are usually combined with covenants which restrict the parting with possession or occupation of the whole or part of the demised premises."

-- Hill and Redman's Law of Landlord and Tenant, Chapter 5.4

[AndrewDod]

Depends how what you arer trying to deal with is worded. e.g it might imply occupancy by several simultaneous groups of people.

I'm not even sure whether OP is concerned with the relationship of L to FH or T or L or what. Always helps to ask actual questions (or at least mostly so) not theoretical ones.

[theartfullodger]

Are you tenant, agent, landlord, solicitor, student? What is it you want to happen - or not happen?

[bob369]

"A covenant against underletting is not broken by the grant of a licence or by permitting lodgers to occupy premises, because lodgers are licensees only and not underlessees"

So the situation is not 'Subletting' (or underletting).

Thank you for quoting that, and the source of reference, very helpful.

The wording in the mortgage terms simply states:
"no subletting is allowed'

The relationship between head landlord, immediate landlord and lodger are as 3 separate individuals.

I have a potential tenant who wishes to take in a Lodger, but at the same time, I as head landlord (and owner) wish to stay within the terms of my lender.

[KTC]

Err, if you the landlord have a mortgage saying "no subletting is allowed", and you have a tenant, aren't you already in breach of your mortgage?

[bob369]

Umm ... my mortgage terms also go onto to state that I: 'must let the property' and 'any tenancy ... must be a Short Assured Tenancy'.

My understanding is that I the owner am termed 'head landlord', even though I do not reside at the property or let to myself though.

One term which also crosses my eye: 'the letting must require use a single residential property' - in this situiation there would still only be one Tenant ?

Apologies - hopefully the title was not misleading, it should have read:

'Is a Lodger a Tenant, and is there subletting'

[KTC]

One term which also crosses my eye: 'the letting must require use a single residential property'

Is that word for word what it says? If not, can you quote the whole sentence word for word please?

[bob369]

Of course:

It states: 'the letting must require use as a single residential property unless the mortgage offer permits multiple occupation'.

[KTC]

Okay, that looks like it's to prevent you from doing room let with seperate contract, i.e. you must let out the whole flat on a single assured tenancy agreement.

So you letting out the whole flat to someone, who then takes in a lodger is probably not a breach of your mortgage terms.

You'll want to make sure your tenancy agreement has restrictions matching that from your mortgage and also any covenants on your lease with the freeholder.

[jpkeates]

You need to be very careful that the tenant or their lodger doesn't acquire a partner who moves in, as that would create an HMO - which is something the mortgage product and the property probably don't support.

[bob369]

I will assume that - as a Lodger has no rights to 'possession' (regardless of any locks on there door), and it is relatively straightforward and swift to evict (ie no court order required), it would allow the lender to regain possession of its security via the terms of its Mortgage. Where that is not the case it creates a number of difficulties for the lender, and hence the terms that they impose regarding 'Subletting'.

You'll want to make sure your tenancy agreement has restrictions matching that from your mortgage and also any covenants on your lease with the freeholder.

As the Freeholder presume life is simpler here.

You'll want to make sure your tenancy agreement has restrictions matching that from your mortgage:

The 10pp Assured Shorthold Tenancy Agreement, and 'Non-Assured Tenancy Agreement - Resident Landlord' should cover that.
However, the AST held by the Resident Landlord would need a clause that states the tenant can allow occupation by 1-2 lodgers.

[jpkeates]

However, the AST held by the Resident Landlord would need a clause that states the tenant can allow occupation by 1-2 lodgers.

You'd definitely not want the tenant to be allowed 2 lodgers.
They'd me managing an HMO and I can't imagine the property is set up to support that.

You'd be relying on the tenant using the lodger agreement that you specify and the "Non-Assured Tenancy Agreement - Resident Landlord" sounds like an odd start point to me.
The other occupant definitely isn't meant to be a tenant.

[bob369]

HMO Licensing here applies at 4+ persons, 1x resident landlord + (up to) 2x lodgers would be the occupancy numbers, so 2-3 total persons.