Resident landlord or AST?

[tenoutoftenant]

Hello, I wondered if anyone experienced could please advise on this scenario:

A landlord lets out a self-containted attic room in a converted garage – which is separate and detached from their house – to a tenant. It has its own front door, so the tenant can only access the part of the garage that they live in.

Rent is paid monthtly for a fixed term of 12 months. Bills are included but tenant pays for own line rental/internet.

No facilities are shared between the landlord and tenant. The tenant has their own kitchen and bathroom. The landlord offers no services that require them to enter the tenant's accomodation (such as cleaning or laundry). The tenant does have access to the landlord's garden, and shares a driveway for access.

Could someone please advise on whether this would be a) a resident landlord, so tenant is occupier with basic rights or b) an Assured Shorthold Tenancy?

Thank you.

[gnvqsos]

You make this sound hypothetical, but I suspect you are one of the parties.Did you post this before using another id?

[ash72]

It may be sufficient that the dwelling is a self contained unit, and therefore would be a Tenant. I would check that it is not in breach of any planning/ building regs as well as insurance/ mortgages.

[DPT57]

I would think that as the landlord is not living in the same converted building as the tenant then they could not be classed as a resident landlord. It would be up to a judge to decide if you chose to risk it and I doubt anyone can give you a definitive opinion. However, if it were my property I'd assume it was an AST.

[jpkeates]

The key determinant isn't the sharing of facilities, it's whether the flat (which is a dwelling place or dwelling house) is part of the same building as the house (even if the landlord lives in another dwelling house).

It is very likely to be, as there's likely to only be one consumer unit and one supply of the key utilities (I'm inferring this because of the bill inclusive nature of the agreement).
So the garage can't function as an independent unit (and still be a dwelling place).

It's also likely not to have its own address and council tax.

If that's the case, it can't be an assured tenancy.

[One of the tenancies that can't be an assured tenancy is] A tenancy in respect of which the following conditions are fulfilled—

(a)that the dwelling-house forms part only of a building...; and

(b)that,... the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—

... also forms part of the building; and

(c)that,... at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which,—

... also formed part of the building"

I don't think I've deleted anything important, but it would be sensible to check the Housing Act 1988 Schedule 1 if this is very important!

If it's not an assured tenancy, there's the question of whether it's a tenancy at all - but that only matters in certain limited circumstances, because most of the differences between a tenant and a licence holder aren't really relevant if you're comparing a common law tenant and a licence holder.

There's no Statutory Periodic Tenancy, there's no section 8 and section 21 notice, there's no deposit protection.

Any of this reasoning could be challenged, so it would be sensible for the landlord (and tenant) to behave as if it were an AST, because that's the safest course for both.

[DPT57]

It's the use of the word "building" that concerns me though. It doesn't say the same demise or same home or even same property. I'm not sure if there are any reported test cases, but that would be useful to know.

[tenoutoftenant]

Ok, that's interesting, thank you. I'm asking on behalf of the lodger/tenant and I posted a similar question elsewhere. However that ended up rather convuluted, so I didnt set out to be purposefully hypothetical but wanted to make sure I was being clear.

I did find this post which seems similar, but hard to compare because the landlord was staying the converted building and the 'lodgers' in the house. There's also the false information provided by the landlord which probably didn't help...

[jpkeates]

I did find this post which seems similar, but hard to compare because the landlord was staying the converted building and the 'lodgers' in the house. There's also the false information provided by the landlord which probably didn't help...

As far as I can tell, the "false" information in the case you linked to was part of the issue.

The landlord's defence was that the two buildings were separate (because the garage had it's own meters) which wasn't the case.
But having asserted that, they were stuck, because it was possible for the court to argue that they were two separate buildings.

I also note that some of the things I posted in that thread are based on the same assumption.

And DPT57 's point is worth noting, because I'm not sure what the current legal definition of a building is.
And, using the english definition, there's no reason why a garage isn't a building.

[tenoutoftenant]

I see, yes, I think you're correct in that the landlord's statement about the garage's own meters was ultimately then used to argue that the two buildings were separate. I didn't pick that up before. But I can't tell if these 'statements' were provided as part of the case, or communications between the tenants/landlord when disputing the deposit.

It makes me wonder how the original written agreement/contract would weigh in. I believe the address that is written on the tenancy/agreement in question includes a separate 'name' for the building to distinguish it from the main house e.g. Rose Cottage, 20 Meadow Lane, Kendal. It also refers to the individual as a 'tenant'

[jpkeates]

The most pragmatic course of action is for the landlord and tenant to behave as though the arrangement was an AST, and renew the agreement each time the fixed term ends (or use an agreement that creates a contractual periodic tenancy).

That way, what needs to be done if it is an AST gets done, and it doesn't matter if it's not an AST.

[tenoutoftenant]

It may be sufficient that the dwelling is a self contained unit, and therefore would be a Tenant. I would check that it is not in breach of any planning/ building regs as well as insurance/ mortgages.

Apologies, I must have missed this. But yes, it does seem that the dwelling did not get planning permission for its current use as self-contained accomodation. I'm advising the tenant and not sure what to suggest after finding this out, so any guidance would be much appreciated.

[tenoutoftenant]

jpkeates,

That sounds sensible, thank you.

Is there any way the tenant can get out of this tenancy early, AST or otherwise? There's a one-sided clause in the agreement (landlord has the right to end it early) but no other break clause...

[jpkeates]

Is there any way the tenant can get out of this tenancy early, AST or otherwise? There's a one-sided clause in the agreement (landlord has the right to end it early) but no other break clause...

A one sided break clause is probably automatically unfair.
If there's a dispute, the court will most likely ignore the landlord's clause or allow the tenant the same.

Landlords using one sided clauses like this are one reason (of many) that people hate us.

[tenoutoftenant]

Thanks again jpkeates, again that makes sense. I presented this to the tenant and they came back with a question, which I don't have a good answer to. I wondered if I could post it here. If the tenant informs the landlord that they probably have an AST, and ask for the deposit to be protected, and the landlord refuses... what happens then?

I've posted a different question about this situation elsewhere, regarding planning and building regs, and the feedback is that it sounds unsafe for residential use - someone mentioned 'beds in sheds' although it doesn't sound quite as bad as some of those. Anyway, my point is that the landlord sounds unlikely to play by any rules. From what I've seen, it almost certainly wouldn't tick the other boxes for an AST (EPC certificate, maybe even electrical safety)

[jpkeates]

If the tenant informs the landlord that they probably have an AST, and ask for the deposit to be protected, and the landlord refuses... what happens then?

Essentially nothing changes.

If the person occupying's view is that they have a tenancy, that doesn't change whether it is or it isn't.

The occupant could try and take the landlord to court for non-protection of their deposit, and the court would have to decide whether it was a tenancy or not, and, then, what kind of tenancy.
In practical terms, I'd have thought that the relationship would be broken by such an attempt and the occupant would no longer be living there.

Other than the academic question about whether it's a tenancy or not, is there a practical problem with the arrangement.
The legal position is, in real life, only an issue if the landlord and tenant have some kind of disagreement that means a third party has to be involved or a third party involves themselves.