Lodger or tenant?

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  • KTC
    replied
    Urgh, first the confusion with the term lodger as used colloquially to mean someone living with the landlord verse its legal meaning of someone living there with a licence with a landlord/licensor who also live in the same building. Many "lodger" are in fact tenant with an excluded tenancy as they have exclusive possesion of their room, regardless of any kitchen/bathroom sharing, and no service is provided to them by the owner/operator.

    If they truely had a licence only, i.e. no exclusive possession, then it wouldn't matter whether OP ever moved out, temporarily or otherwise. The licence cannot turn into a tenancy, and in turn a tenancy that's assured.

    The question of whether the moving out was temporary only comes into play if the occupier had an excluded tenancy, excluded by the fact that it cannot be assured as they were living with a resident landlord. The test is whether at all time the OP "occupied as his only or principal home". I would suggest probably yes...... except OP went and protected the deposit as if it were an AST while they were away?

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  • theartfullodger
    replied
    Originally posted by Elephant2021 View Post
    ..... Worse case scenario potentially is criminal prosecution on the basis that the police/council won't know the law etc.......
    Err , no criminal conviction & fines etc. I'm aware of one case of £46,538. Unlikely but possible,

    Well, I'm a gambler, are you?

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  • Elephant2021
    replied
    Thanks for the feedback. So in terms of an answer it's either change the locks, or proceed with Court action. Worse case scenario potentially is criminal prosecution on the basis that the police/council won't know the law etc. However if I go to court this could drag on for months and incur costs but if successful I can claim those back from him? Any experience on level of costs if I go down the legal route? I can't imagine a bailiff kicking him out of his room!

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  • Jon66
    replied
    I think Tessa is over simplifying for the general public. The issue here appears to be the length of time the owner has been away from the property. At what point does temporary cease and become permanent? Due to covid, my thoughts are the courts would probably come down in favour of the owner. One of the reasons for my thinking this is they are reluctant to become involved in what Parliament has legislated for and set up. The status of lodger exists to give the owner the right to say who can and can't live in their property. Because the owner has returned I think the courts will on balance find for the owner providing the verbal evidence stacks up. If a judge go any hint of this being contrived i think the result would be different.

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  • westminster2
    replied
    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.

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  • Ted.E.Bear
    replied
    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.

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  • theartfullodger
    replied
    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

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  • GaryGoals
    replied
    That must be an awful atmosphere to live in. How do you relax? Change the locks.

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  • Jon66
    replied
    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.

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  • DPT57
    replied
    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.

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  • cymro123
    replied
    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.

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  • DPT57
    replied
    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.

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  • cymro123
    replied
    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’.

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  • DPT57
    replied
    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.

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  • Hudson01
    replied
    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

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