Resident landlord or AST?

[tenoutoftenant]

Thanks for the quick reply jpkeates, I thought that might be the case.

I think a couple of things sparked this, the first being repairs not being done. There was a leaking soil pipe from the toilet, which dragged on for a few weeks, because the landlord attempted to fix it themselves on both occasions - plus delays when the landlord went on holiday. Then there are ongoing plumbing issues, again including sewage and installation problems, for a few months. No plumber has been called out as of yet and this is a small studio flat, so all rather unsanitary.

As for the second issue, I think the tenant was happy to accept their lot as a 'lodger' but now realises they could be a 'tenant' with some rights, and are now a bit unhappy about putting up with single-skinned walls, no lockable windows, building safety etc.

[jpkeates]

I can see the issue with the plumbing, but their status as a lodger or a tenant doesn't really have any impact on that issue.
I agree that the situation doesn't sound acceptable, but there's not a lot that the tenant can do about it without massively escalating things by calling the environmental health department or getting a plumber in themselves.

It's one for a grown up discussion with the landlord or moving out.

As for the second issue, I think the tenant was happy to accept their lot as a 'lodger' but now realises they could be a 'tenant' with some rights, and are now a bit unhappy about putting up with single-skinned walls, no lockable windows, building safety etc.

And that one is a complete load of toss.
Either the person is happy with what they get for the money that they pay or they're not.
And if they're not, they should move out.

Some weird feeling of entitlement because of their residential status isn't going to help anyone.

[tenoutoftenant]

jpkeates,

I'm with you on the tenant moving out, and have also suggested this.

I wouldn't say this is anything to do with a 'weird feeling of entitlement' though. Perhaps I misinterpreted your question when you asked if there were any practical problems with the arrangement, so apologies there. I was trying to make the link between wanting to move out and getting the deposit back, which I didn't explain properly, so I've hopefully explained it better below...

Wanting to move out early comes from the ongoing repairs but also realisation that the building is potentially not safe to live in (due to no planning permission and possibly no building regs). Getting the deposit back when moving out early depends on whether it is a lodging agreement or AST. Being an AST doesn't mean they would get it back, but if it's likely to be an AST and it's not been protected then I'm guessing the tenant would have some bargaining power (and could therefore make the choice to move out without the threat of a financial penalty).

[jpkeates]

Wanting to move out early comes from the ongoing repairs but also realisation that the building is potentially not safe to live in (due to no planning permission and possibly no building regs). Getting the deposit back when moving out early depends on whether it is a lodging agreement or AST. Being an AST doesn't mean they would get it back, but if it's likely to be an AST and it's not been protected then I'm guessing the tenant would have some bargaining power (and could therefore make the choice to move out without the threat of a financial penalty).

That does make a lot more sense.
Apologies for my misunderstanding and, correspondingly inappropriate, response.

If the occupant has signed a contract for some kind of fixed term, leaving early would put them in breach of that agreement and the landlord would be entitled to claim compensation.
The only difference between the breach as a lodger and as a tenant is that if the breach is by a lodger, the landlord has to mitigate their loss, while if they're a tenant, the landlord doesn't have that obligation and could simply claim the entire lost rent as compensation.

It's quite possible that the landlord wouldn't know that.

The occupant could probably use the unprotected deposit as a threat either way - the landlord would have to be pretty sure of their ground to be confident that they could defend the claim (and I wouldn't be in their shoes, to say it's a bit of a grey area is putting it mildly).

What's most likely to happen is that the landlord would decline to return the deposit as compensation, simply because it's money that's readily to hand.
The landlord isn't likely to sue for the rest of the rent, because when it comes down to it, if it's a tenancy (where they're entitled to the entire rent amount) they didn't protect the deposit, which makes things a bit tricky for them.
On the other hand, if they don't know what they're doing, they might try and claim in ignorance - but at the end of the day, a lot of people threaten to make a claim and few do.

If the landlord does retain the deposit, it depends on what the occupant wants to do.
On the one hand, it's the cost of leaving early having decided the place isn't what it seemed.
On the other hand, they could threaten to (or actually) sue for its return through the small claims court.

The landlord may counter claim and it could all get a bit stressful, but the landlord's counter claim has all the issues with making a claim in the first place.

[tenoutoftenant]

jpkeates, I've been busy recently but just wanted to come on here to say thank you for your detailed reply. It's most helpful and I'll pass it on. I imagine it will be reassuring to know the potential outcomes, even if it doesn't go the tenant's way.

[CStevens]

tenoutoftenant,

It sounds more likely to be considered an AST than a licence to occupy however i guess, depending if either party wanted to cause an issue for the other, a case could potentially be offered for either. If you are the landlord then you are better off erring on the side of caution and treating the occupation as an AST from the start and complying with all of the legislation. If the landlord does this the worst case scenario would be that the occupation is deemed to be a licence which is not an issue.

If the landlord treats the occupation as a licence and it turns out to be an AST (or successfully argued to be so) then the landlord will be in breach of numerous regulations and provisions if they have not registered the deposit, served the relevant documentation and, in the worst case, evicted the tenant without following the correct process.