Research lodger or tenant and what's the most suitable lease agreement?

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  • Jon66
    replied
    Statutory provision means the statutory law as laid out in the legislation.

    The point is to look at the purpose and intention of the law. My opinion is that you live in close proximity to your landlord in a building annexed from the main property but which is within the curtilage of that property and as such probably have a common law tenancy, there is a case to support my view.

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  • ldexterldesign
    replied
    Ted.E.Bear

    Thanks for that resource

    I think the three most relevant sections are:

    1.

    > In Lewis-Graham v Conacher6, an extension which was originally a granny flat and garage had been added to a semi-detached house. It had connecting doors between the house and the extension which were locked. There was a common gas, electric and water supply. At that stage, it was clearly one building. The landlord subsequently carried out works to divide the two dwellings into “separate buildings” after serving notice on his tenant (but had not completed the work before the notice had expired). The Court held that there was still one building. Interestingly, the Court also stated that they did not feel that it would be a separate dwelling even if the services were separate (as they were subsequently).

    Unable to infer unless "services" is defined

    2.

    > Purpose-built
    > “Purpose-built block of flats” is defined in sch. 1, para 22. It must as constructed contain two or more flats. The date of construction is the relevant time to consider, and a distinction is drawn between conversions of existing buildings (which would only in the most exceptional circumstances constitute “purpose-built blocks of flats”) and constructions of new buildings (which if they consist of two or more flats will be within the definition).

    I infer my rental is not purpose built because it doesn't contain >1 thing

    3.

    > “Same building”
    > Whether the dwelling-house let to the tenant forms part of the same building (or flat) as the dwelling-house occupied by the landlord is an issue within the legislation which seems to cause the most confusion to practitioners. This confusion is understandable, since the distinctions are obscure and in some cases appear to lead to conflicting conclusions – something all practitioners of housing law will find eminently familiar !
    >
    > For example, is our granny annex in the initial example to be considered as “part of the building” ? Clearly where the annex is a separate building, say adjacent to the landlord’s own dwelling (or even at the bottom of the landlord’s garden), then it will not be part of the same building (as there is a no significant physical connection between the two buildings) and thus the landlord will not fall within the “resident landlord” status.
    >
    > But, what if the landlord builds an extension onto his house for use as rental accommodation, and the extension has no interconnecting doors with the original building ?
    > Whether or not the landlord’s dwelling house and the tenant’s dwelling house is deemed to form part of the same building is a question of fact and degree. But in coming to an overall decision on this matter, it is likely that a court will pay significant regard to the intention of the statutory provision when the legislation was drafted3, which was to allow the landlord to remove a tenant who lives in close proximity to him.

    As it stands, I infer my landlord is not resident, which seems to be the most important factor in concluding this case, because there is a no significant physical connection between our (i.e. landlord and my) two buildings

    Can anyone clarify what "statutory provision" means?

    Hope to hear back

    Cheers

    Leave a comment:


  • Ted.E.Bear
    replied
    Originally posted by ldexterldesign View Post
    If "garage" is as pertinent as it seems here
    For a summary, see https://letlink.co.uk/letting-librar...using-act-1988

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  • ldexterldesign
    replied
    Jon66

    Hi!

    Thanks for reply

    If "garage" is as pertinent as it seems here then my apologies to Ted.E.Bear

    Regards

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  • ldexterldesign
    replied
    jpkeates thanks for thinking for me!

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  • Jon66
    replied
    I think on the facts it's most likely to be a common law tenancy as clearly the garage is annexed to the house, whether detached or attached.

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  • Ted.E.Bear
    replied
    Originally posted by ldexterldesign View Post
    If you're anti-social then ask yourself why you're using a help forum?? 😕
    I am usually helpful, but my patience is tried by people who deal with requests for clarity by just referring to earlier answers.
    I still don't know for sure if the garage is attached to the house - I know it is a 'separate building', which I think very likely means it isn't attached at all - but some people do refer to seperate, and attached, buildings in different ways.
    As you didn't want to help clear up possible ambiguities you shouldn't be surprised if some people don't want to risk wasting time on something that could end up all being wrong anyway.

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  • jpkeates
    replied
    Originally posted by ldexterldesign View Post
    Yes, I need to persuade my landlord to migrate from a lodger agreement to a tenant agreement. I'm strategising how to do this but on paper it does seem an AST is the most suitable agreement. I will relay something to the effect of: not having the correct agreement in place tends to forfeit the landlord rights, not the occupier rights, if a problem arises, which I read on authority.
    The landlord is likely to believe that there are significant benefits to a licence agreement, which gives you many fewer rights than you would have with an AST.

    Unless they understand that the agreement is actually an AST regardless of what it says, they're unlikely to want to change anything, because they'll think they're doing something to their disadvantage.

    It might be an advantage if your landlord took some legal advice about their own position.

    There are downsides for the landlord, because there are penalties for not protecting a deposit connected to an AST, but, again, the landlord is likely to believe that they are doing the best thing for them (otherwise why not use an AST in the first place)?

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  • ldexterldesign
    replied
    jpkeates

    > So the notice periods and terms are likely to be invalid

    Actually, there is nothing relating to ending a let (inc. notice periods) in my agreement, which is another reason I want a new agreement (i.e. the correct type of agreement)

    > If there's a deposit it probably needs to be protected and so on (regardless of what the tenancy agreement).

    Tangentially, my deposit protection scheme (DPS) is the reason for embarking on this issue

    Our DPS won't uphold a dispute if an AST isn't in place so in order to have my deposit protected I need an AST

    > The basic problem is likely to be that it's likely that the landlord won't agree with my conclusion, and the issue will arise when something happens where the type of agreement is critical.

    Yes, I need to persuade my landlord to migrate from a lodger agreement to a tenant agreement. I'm strategising how to do this but on paper it does seem an AST is the most suitable agreement. I will relay something to the effect of: not having the correct agreement in place tends to forfeit the landlord rights, not the occupier rights, if a problem arises, which I read on authority.

    Yes, having locks changed if a problem arises, which he did threaten when I moved in if rent wasn't paid, is a fear motivation for an AST

    [This] and [that] are useful resources for understanding lodger rights relating to notice periods and eviction

    Cheers

    [This]: https://www.gov.uk/rent-room-in-your...s-tenancy-type
    [that]: https://england.shelter.org.uk/housi...sic_protection

    Leave a comment:


  • theartfullodger
    replied
    The paperwork is all very interesting but it's reality that defines the sort of agreement you have (see Street v Mountfield).

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  • ldexterldesign
    replied
    theartfullodger

    Hi,

    Thanks for reply

    Yes, I used Shelter tool, mentioned [here]

    I will speak to Shelter next week

    Cheers

    [here]: https://forums.landlordzone.co.uk/fo...44#post1160144

    Leave a comment:


  • jpkeates
    replied
    Originally posted by ldexterldesign View Post
    [ that my lodger agreement would be null/void/incorrect in court because it doesn't accurately reflect my situation..?
    It takes a huge amount of issues to make a whole agreement void.

    There are parts of the agreement that would be valid regardless of the type of lease/licence.
    The landlord's name, the rent, the property, the start dates and most of the terms and conditions etc would probably also be valid.

    There are terms that would be invalid, because the law relating to tenancies would simply override them, and a contract can't override the law.
    So the notice periods and terms are likely to be invalid.

    If there's a deposit it probably needs to be protected and so on (regardless of what the tenancy agreement).

    The basic problem is likely to be that it's likely that the landlord won't agree with my conclusion, and the issue will arise when something happens where the type of agreement is critical.
    If the landlord gives notice for example and doesn't use the correct term or format of the notice, it wouldn't be valid, but only one of you believes that's the case.

    If you are a lodger (ignoring the lack of definition), when the landlord's notice expires, the lodger can be locked out if they haven't moved out.
    That's not the case for a tenant, but that doesn't help when you're outside in the rain!

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  • theartfullodger
    replied
    Do tenancy checker on Shelter website and/or 'phone Shelter 0808 8004444

    Leave a comment:


  • ldexterldesign
    replied
    jpkeates

    Thank you - great advice!

    For completeness, to answer some of your propositions...

    > [...] whether you have exclusive possession of a property, which is a "dwelling house" and pay rent

    Yes, I have exclusive possession

    > [...] facilities to allow you to sleep, eat, go to the toilet and wash. So assuming you have those things, what you rent is a dwelling house.

    Yes, I have these things

    > If it has a separate address and there is council tax paid separately, that would also be helpful to this notion.

    I share the address (i.e. do not have my own address)

    Council tax, like all bills, are included in my rent

    > If you can exclude everyone else from it, including the landlord, and the landlord doesn't require access to perform a service you've agreed to (like cleaning or cooking or delivering meals) you probably have exclusive access. If there were no key, or an open door between the two properties for example, that might be unhelpful.

    I can exclude everyone inc. landlord (LL) and LL doesn't need access

    There is a key and no open door

    > Presumably, you pay rent

    Yes

    > That would be true regardless of what documentation you have.

    Ahh, interesting

    I infer from your URL and point:
    > And, even then, it might be, because if the term that says it's not intended to be an AST is part of the agreement that claims it's not a tenancy at all, but a licence, it should probably be set aside if it went to court.

    .. that my lodger agreement would be null/void/incorrect in court because it doesn't accurately reflect my situation..?

    > If you are a human being living there as your main home, if the lease began post 1988, it's almost impossible for the tenancy not to be an Assured Tenancy, and it will probably be an Assured Shorthold Tenancy, unless the agreement specifically says it isn't.

    I am human (although I often wish I wasn't and lived in the forest), it's my main home and lease began 2020

    Agreement doesn't say it's not an AST

    Thanks again

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  • ldexterldesign
    replied
    *Reposting because this post stays "unapproved", should be post #12"

    Dreamingofsea

    Interesting, yes I imagine case law on property/agreement classification is hazy

    > Have you got a lodgers agreement because that's definitely not correct

    Yes, an AST was switched to a lodger agreement at the last minute, if I recall for no other reason than my landlord thought it a better fit. I only accepted out of grace and because the lodger agreement seemed OK; if a little terse (too terse in retrospect because it doesn't include anything about ending the let).

    Based on today's research I plan to request an AST from my landlord. Naturally, I want to understand my rights in advance of poking that nest.

    FYI using [this] tool in every which way possible for my situation yields an AST result so that alone certainly justifies the landlord request I think

    Cheers

    [this]: https://england.shelter.org.uk/housi...rights_checker

    Leave a comment:

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