Lodger or tenant?

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    Lodger or tenant?

    Hi all,

    New to this forum and a landlord. Thanks for the feedback in advance.

    About 18 months ago I took on a lodger and lived with him. In early 2020 my mother fell ill so I went to take care of her and stayed in her home. Her health got worse and then the pandemic happened. I stayed with her as her primary carer but ended up temporarily living with whilst working remotely from her home.

    At the beginning of 2021 I served my lodger his contractual notice (2 months) but I was happy to enter into an agreement with him if he needed more time given the current situation. He maintained he was now an AST as I had not been back.

    Having failed to discuss matters with me I gave him a s.21 and s.8 (ground 1) six month notice subject to the position that I considered him a licensee. I also registered his deposit and got a gas certificate. I know this has no effect in terms of the s. 21 but it was all done to reach an amicable agreement. I subsequently moved back into the house about 2 months ago having put my mother into a nursing home.

    To date he has still refused to discuss matters with me (trying to avoid me at all times) and I'm considering the possibility that he might not leave when the notice expires. Also he has just disappeared for a whole month with no notice and I suspect his rent is covered by Universal Credit as he's not worked in months. Also I've been given no notice of when/if he'll return.

    Appreciate it's not a straightforward but be grateful for some advice should he not move out. Does the fact that I've moved back in now reinstate the lodger status or does this require an application to the court? Also is there any way I can speed up this process? 6 months is a long time to have my life on pause.

    #2
    There is no black or white answer to whether he remained a lodger, but if you were out for the best part of 18 months, then I would doubt it. You may not have done all ghe things required in the right order for your s21 to be valid, but you can check here: https://nearlylegal.co.uk/section-21-flowchart/

    assuming he doesn't have high rent arrears, your best bet might be s8g1 on the basis that this was/is your home. Its a 6 month notice period at the moment and then you might have to go to court etc, which will more than double that time. This ground is supposed to only be mandatory if you served notice in advance that this was your home, but as you were living there at the time, I would have thought the judge might allow it on a discretionary basis.

    Comment


      #3
      I would say he is still a lodger, if this wasn't the case, he wouldn't have allowed you to come back and live there, change the locks, ignore the S21 and S8 it doesn't apply.

      I'm assuming you were still paying the council tax on the property, bills, etc. Covid has caused a number of issues, you moving away can be attributed to this, your property was still your main residence.

      Comment


        #4
        Thanks for the responses so far. All bills and council tax are in my name and paid by me. He is only renting one room and his rent is inclusive of bills. If I have served the s.21 and 8 notices but change the locks then will I risk him complaining to the council or prosecute me (as he has threatened in the past)?

        Have either of you had personal experiences in similar circumstances? Is the best and safest option for me to see out the 6 months living here and then change the locks once the notice has expired. Obviously if I had a water tight case to make things happen earlier I will.

        Thanks to you both and others in advance.

        Comment


          #5
          Originally posted by ash72 View Post
          I would say he is still a lodger, if this wasn't the case, he wouldn't have allowed you to come back and live there, change the locks, ignore the S21 and S8 it doesn't apply.
          I would concur on balance, but the issue could be the sending out of the S21 and S8, If it went before a court that would not say to any judge that you 100% knew it as a lodger arrangement. I would have considered simply changing the locks when he left the house ..... but with the two notices issued ?? In the end though he still has to do all the leg work once he is out of the house and he may choose not to do this and simply move on, but it is a gamble.
          Last edited by Hudson01; 08-05-2021, 12:32 PM. Reason: spelling

          Comment


            #6
            It will turn on the facts, but that's s long time to be away from home. Your s8/s21 notices would also have to be explained if you're arguing that you think it's still a licence. I suggest you speak to a specialist housing solicitor who has experience of this.

            Comment


              #7
              Only a judge can give you an answer to the question. Whether the occupier is a tenant or licensee will be key.

              1. Are you letting a room (or two) in your own home? Yes
              2. Did you make it clear to the person paying you rent that you have the right to enter the rented room from time to time (while respecting their privacy)?
              3. Did you ensure the rented room never had a lock or anything fitted that would prevent you from accessing the room?
              4. Did the person paying you rent share some living space with you? – This will generally be one or more of the kitchen, bathroom or living room.
              5. Did you provide some services for the person paying you rent? E.g. clean sheets, clean towels, cleaning services or meals.
              If you can answer Yes to all 5 questions, the person paying you rent will be a ‘lodger’ otherwise they will may well be a ‘tenant’.

              Comment


                #8
                Originally posted by cymro123 View Post
                If you can answer Yes to all 5 questions, the person paying you rent will be a ‘lodger’ otherwise they will may well be a ‘tenant’.
                I don't think there is any dispute about the whether the person was a licensee to begin with. The issue is that after the landlord moved out of the property for a long period, (18 months?) can it still be regarded as a licence. I think probably not, but a clever solicitor may be able to argue it.

                Comment


                  #9
                  From the information provided I don't believe it is 100% clear what the status of the occupier was from the outset and only the OP can answer these questions and consider what was actually done against the principles from Street v Mountford. Assuming the occupier was a lodger from the outset then provided the landlords move was temporary e.g. kept possession at the property, remained on the electoral roll, occasionally returned to property etc etc then the occupier remains a lodger.

                  Comment


                    #10
                    I don't agree that its so black and white, but its possible. You have to bear in mind that students living in rented accommodation only during term time and workers who live in a rented property Monday to Friday may all be assured tenants.

                    Comment


                      #11
                      I agree it's a grey area, and were it not for Covid I would say the the lodger turned into a tenant somewhere along the way. However, we have had Covid and I suspect these type of cases, if any come to court, will be treated fairly sympathetically. In fact if he returns I would ask him to move out amiably and pay him to do so. There isn't much housing stock out there at the moment, and rents certainly in my area south east are rising. It's a difficult thing for everyone.

                      Comment


                        #12
                        That must be an awful atmosphere to live in. How do you relax? Change the locks.

                        Comment


                          #13
                          Originally posted by GaryGoals View Post
                          That must be an awful atmosphere to live in. How do you relax? Change the locks.
                          That would very probably be harassment or illegal eviction of tenant: For both of which landlords can & have gone to jail, plus fines. Do it the legal way
                          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


                            #14
                            Originally posted by theartfullodger View Post
                            That would very probably be harassment or illegal eviction of tenant: For both of which landlords can & have gone to jail, plus fines. Do it the legal way
                            If he is a lodger then, as enough notice was given, changing the locks is perfectly legal.

                            But, I think it may make sense to apply for a possession order, based on him being a lodger. That will, at least, decide the matter. And losing the case won't leave the landlord much worse off than they are now.

                            Comment


                              #15
                              Tessa Shepperson is a reliable L&T lawyer, and this post on her blog seems to answer the basic question, whether a lodger becomes an AST tenant when the landlord moves out temporarily - the answer is no. https://landlordlawblog.co.uk/2020/0...become-tenant/

                              When you moved out, it was always intended as temporary - i.e. you didn't move your personal belongings out of your home, and always intended to return, etc.

                              Having said that, cymro123's questions may be relevant, to establish the original status of the probably-a-lodger/licencee. If you didn't share any parts of the property with the 'lodger', and if the lodger's room had a lock on it, then it might be argued it qualified as an AST from the outset.

                              However, assuming you shared parts of the property with the lodger etc, - and he was indeed a lodger/licencee - I don't think you serving notices appropriate to an AST tenancy matters, because the status of the probably-a-lodger/licencee is down to the basic facts of the set up; serving a s.21 notice on a lodger doesn't magically transform him into an AST tenant.

                              If I have served the s.21 and 8 notices but change the locks then will I risk him complaining to the council or prosecute me (as he has threatened in the past)?

                              Have either of you had personal experiences in similar circumstances? Is the best and safest option for me to see out the 6 months living here and then change the locks once the notice has expired.
                              N.B. The procedure for evicting an AST tenant is to apply for a court order for possession after the s.21 or s.8 notice expires. And, having obtained the court order, to apply for a bailiff to execute the order. It would be a criminal offence for the landlord of an AST tenant to change the locks upon expiry of a s.21 or s.8 notice.

                              It's also fairly inadvisable to change the locks in the context of evicting a lodger/licensee, where the occupier's status is at least open to question and he is moreover threatening legal action. Neither the council nor the police will understand the finer detail of the legal situation (both are often ignorant of the law), and could well take the occupier's side against you, albeit is highly unlikely you would ultimately face a prosecution when the facts were eventually established.

                              In your shoes, I would find a solicitor specialist in landlord & tenant law, and instruct them to serve an appropriate notice. A solicitor's letter alone, advising the lodger of his legal position, might also have the desired effect.

                              Comment

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