Am I a lodger or a tenant?

[jpkeates]

The forum anti-spam filter hates me..... let's try again.

I feel your pain!

Thank you - that makes a lot more sense to me now.

[KTC]

The forum anti-spam filter hates me..... let's try again.

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Westlaw and Lexis (oh and I guess Google) here I come.

In the absence of any provision in the lease or statue to the contrary, a lessee has the right to create subleases. A subletting in breach of covenant is not void, but subject to any right of the lessor to forfeit the lease for breach of covenant. If a tenant is evicted by title paramount when the tenant had a tenancy by estoppel (i.e. tenancy granted by someone with no good title to do so), the tenant can claim damages from the mesne landlord.

Covenants restraining sub-letting are strictly constructed against the landlord. A covenant merely "not to sub-let" generally mean the property as a whole. So if the superior landlord only restricted Sara in such form, the subletting of a room would be lawful so long as Sara haven't subleted the whole in aggregate. On the other hand, "in parts" covers the whole.

In common law, when the mesne tenancy ends, in general the subtenancy ends with it. Where the tenancy ends by surrender, the subtenancy is binding on the superior landlord even if it was granted without consent and the superior landlord were unaware of it. A subtenant is entitled to apply for relief where the superior landlord is forfeiting the mesne tenancy.

Where the tenancy is assured periodic, there is an implied term against subletting if there's no expressed term on the issue assuming a premium wasn't paid for the granting of the tenancy. Where there is an expressed term that subletting can only happen with landlord's consent, the consent cannot be withheld unreasonably. Where the expressed term is a complete prohibition, there is a complete prohibition without regards to reasonableness.

Where the subtenancy is lawfully let on an assured tenancy, then it will survive the ending of the mesne tenancy, so long as the superior landlord can be the landlord of an assured tenancy. Whether a subtenancy is lawfully let is determined in the same manner as for the Rent Act 1977. The question whether it is lawful or not is answered at the date of termination of the mesne tenancy or commencement of proceedings as the facts requires. An unlawful subletting and become lawful if the superior landlord is aware of or should be aware of the breach, and waives or agrees not to act on the breach.

[DPT57]

If for the superior landlord to inherit the mesne landlord's tenants the mesne landlord must have the landlord's permission to grant a tenancy in the first place (which is the case for social housing), because there's a requirement that the subletting is lawful, it would be possible for the superior landlord to avoid that happening simply by claiming that there was no permission to sublet. This would be the case in most tenancy agreements (as you have subsequently pointed out).

Except the courts wouldn't believe it unless both the contract and actions of the superior landlord clearly forbid subletting. There have been cases highlighted on Nearly Legal where the landlord did no inspections of the property and the court found that they had colluded with the mesne tenant to allow subletting, cynically keeping a clause in the tenancy agreement ostensibly forbidding it to try to avoid inheriting the tenants.

[jpkeates]

The term lawful here applies to private landlord. It's a term that does not just exist within the Housing Act 1988, but also Rent Act 1977, and probably other places. In this context, it basically means as the Shelter page summarised, did the mesne tenant have permission to sublet. That section of the Housing Act 1988 is specifically to make it different to common law to provide more security of tenure for an assured tenant so their tenancy continues even if the superior tenancy ends.

Well, if the mesne tenancy has ended, the sub-tenant becomes the tenant of the superior landlord. If the superior landlord wants to not accept rent, that's entirely up to them, but it doesn't affect the (sub-)tenant's tenancy status. The superior landlord cannot serve notice themselves until such time they are the direct landlord of the (sub-)tenant, though they can rely on any valid notices the mesne landlord may have served on the sub-tenant.

I don't see how both of those can be true, though (probably just me!).

If for the superior landlord to inherit the mesne landlord's tenants the mesne landlord must have the landlord's permission to grant a tenancy in the first place (which is the case for social housing), because there's a requirement that the subletting is lawful, it would be possible for the superior landlord to avoid that happening simply by claiming that there was no permission to sublet. This would be the case in most tenancy agreements (as you have subsequently pointed out).

My understanding of the common law position was that, if the tenant of the mesne landlord reasonably believed that the mesne landlord was able to grant a tenancy, that (provided the other requirements for a tenancy were present) a tenancy existed - regardless of whether the landlord was able to legally create one.

It's been a long time since I studied, so much of what I know is now way out of date - but I can see why the law change in 2013 would be necessary to help social housing providers avoid the issue, and, typically, no one seems to have given the same protection to private landlords at any point.

[KTC]

That 6M tenancy will almost certainly have clause against you subletting though.

[AndrewDod]

Well, if the mesne tenancy has ended, the sub-tenant becomes the tenant of the superior landlord. If the superior landlord wants to not accept rent, that's entirely up to them, but it doesn't affect the (sub-)tenant's tenancy status. The superior landlord cannot serve notice themselves until such time they are the direct landlord of the (sub-)tenant, though they can rely on any valid notices the mesne landlord may have served on the sub-tenant.

If that were so straightforwardly the case then I would easily be able to a secure a tenancy for my friend's daughter (D) who has zero credit rating, and zero ability to pay rent.

I would take a 6M tenancy myself, immediately grant a 4 year tenancy at quarter my original rent to D, let D stay there while telling the landlord I have sublet it, and then at six months declare that I have left and no longer have any liability.

Don't think it works that way, or at least if it does tenants haven't cottoned on.

[KTC]

I am less sure that all the stuff on that page about lawful and unlawful tenancies is relevant to private landlords, because the legislation that makes a sublet unlawful only applies to social housing.

The term lawful here applies to private landlord. It's a term that does not just exist within the Housing Act 1988, but also Rent Act 1977, and probably other places. In this context, it basically means as the Shelter page summarised, did the mesne tenant have permission to sublet. That section of the Housing Act 1988 is specifically to make it different to common law to provide more security of tenure for an assured tenant so their tenancy continues even if the superior tenancy ends.

There is no reason L has to accept rent from anyone else - so in a non-covid world eviction would follow pretty soon.

Well, if the mesne tenancy has ended, the sub-tenant becomes the tenant of the superior landlord. If the superior landlord wants to not accept rent, that's entirely up to them, but it doesn't affect the (sub-)tenant's tenancy status. The superior landlord cannot serve notice themselves until such time they are the direct landlord of the (sub-)tenant, though they can rely on any valid notices the mesne landlord may have served on the sub-tenant.

[nukecad]

TBH all this sounds familiar. (But from the other side).

I wonder if 'Sarha' is actually called 'Bob'?
Or is this sort of arrangement simply becoming popular in certain areas with a certain style of landlord?

[jpkeates]

But even if the above were to happen -- the OP would only ever be an AST tenant of a room (that is all any contract they had ever involved) and even if the main L then became their L on a continuing AST, how would that work out. There are innumerable ways the L could deal with that - for example he could grant tenancies to some murderous thugs of the other rooms if non-paying squatters (from his POV) refused to move.

To be fair, the OP already has a roommate not to their liking!

It's one of those situations where the legal solutions possibly aren't the most helpful route forward.

[AndrewDod]

But even if the above were to happen -- the OP would only ever be an AST tenant of a room (that is all any contract they had ever involved) and even if the main L then became their L on a continuing AST, how would that work out. There are innumerable ways the L could deal with that - for example he could grant tenancies to some murderous thugs of the other rooms if non-paying squatters (from his POV) refused to move.

And whatever happened the original tenant of L (if not removed voluntarily or otherwise or if removed and not vacated together with all subtenants) would remain liable to pay rent. There is no reason L has to accept rent from anyone else - so in a non-covid world eviction would follow pretty soon.

[jpkeates]

I am less sure that all the stuff on that page about lawful and unlawful tenancies is relevant to private landlords, because the legislation that makes a sublet unlawful only applies to social housing.

If a tenant reasonably believes the person granting them a tenancy has the right to do so, the tenancy is likely to exist.
And if the mesne landlord didn't have permission to sublet, they have to resolve the issue, because they're contracted with the tenant.
Which is probably why The Prevention of Social Housing Fraud Act 2013 had to explicitly stop it being allowed in the first place.

[KTC]

The final part of that page is important.

"If the mesne tenant loses or gives up the tenancy, the subtenant becomes the tenant of the head landlord, so long as the subletting was lawful and the subtenant is an assured/assured shorthold tenant. The mesne tenant does not need to be an assured/assured shorthold tenant."

[AndrewDod]

I think these would be the general principles:

https://england.shelter.org.uk/profe...e_tenancy_ends

I don't think the subtenants would be inherited except in some circumstances (acceptance of rent directly, and so on).

If the main tenant gave notice, or there was a possession order, and the subtenants failed to leave the original tenant would remain liable for rent and the usual eviction procedures would apply.

[jpkeates]

Sarah is however a tenant herself and if she is removed (or removes herself) as a tenant you have no very strong rights in terms of Sarah's landlord.

I'm not sure (genuinely) how that would work.

I don't think Sara can "remove herself" as landlord - the only way to do that would be to end the tenancy somehow.
You can't resign as landlord.
And I have no idea what happens when a landlord simply vanishes - because the landlord is typically a property owner, it can't arise that often.

If she is "removed", I'd have thought her immediate landlord would inherit the occupants as tenants (unless that's something specific to company lets).

[KTC]

Sarah is however a tenant herself and if she is removed (or removes herself) as a tenant you have no very strong rights in terms of Sarah's landlord.

Depends on whether Sarah's landlord agreed to Sarah's letting out the rooms.