Going travelling for a year. Let or licence my flat?

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  • jeffrey
    replied
    Contrast g1: L who is owner-occupier can effectively reserve right to return.

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  • Lawcruncher
    replied
    Originally posted by natt48 View Post
    So doesn't that mean that the landlord in question could legitimately use the lodger agreement and it should not be viewed as an AST. Maybe I'm missing something.
    In the context of this thread I think we need to distinguish between:

    1. The place you call home

    and

    2. (To adopt the wording of the Protection From Eviction Act 1977) the place "the landlord or licensor occupies as his only or principal home".

    The key word has to be "occupies". If the property is fully occupied (whether by tenants or licensees) on terms that preclude the landlord from occupying it in a way that it can reasonably be considered to be his home (whether principal or not) then I do not think he can fulfil any residency condition that requires him to be in occupation when the arrangement (whether tenancy or licence) comes to an end.

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  • natt48
    replied
    Originally posted by jeffrey View Post
    A travelling L still has to have a home. If not at this property, where else could it be?
    So doesn't that mean that the landlord in question could legitimately use the lodger agreement and it should not be viewed as an AST. Maybe I'm missing something.

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  • jeffrey
    replied
    A travelling L still has to have a home. If not at this property, where else could it be?

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  • natt48
    replied
    If the property is let on a lodger agreement and the landlord goes on holiday for 6 months living in hotels is the property still his main home?

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  • jeffrey
    replied
    Serve a ground 1 Notice before you let; this strengthens your repossession rights as an ex-owner/occupier.

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  • dghyphenj
    replied
    thank you all

    Thanks very much for the info.

    On the basis of what you've all said I think it's going to have to be AST. (My mum lives in her own property nearby so sublet isn't really a goer... but I liked the suggestion).

    "I agree, got to be a tenancy, not a licence. If it was so easy we'd all do it!"

    Therein lies the point! Guess I'd better stop looking for shortcuts and just get on with the paperwork etc.

    Thanks to you all.

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  • tom999
    replied
    Ok. But, mum may not wish to live in a let property as post #1 implies she has her own residence. A LL managing property from a distance and being a resident LL can be two very different experiences.

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  • jeffrey
    replied
    Originally posted by tom999 View Post
    Yes, but would a tenancy with mum exist, if mum was not using the property as her main residence (and only visits to manage the property)?
    No. I meant that- for the duration- mum should take up residence at the property (so becoming resident L).

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  • Lawcruncher
    replied
    Originally posted by jeffrey View Post
    Why not:
    a. let to mum; and
    b. include in her Tenancy Agreement a power for her to sublet?
    I have not thought it through, but it is not immediately apparent to me how this will help.

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  • tom999
    replied
    Originally posted by jeffrey View Post
    Why not:
    a. let to mum; and
    b. include in her Tenancy Agreement a power for her to sublet?
    Yes, but would a tenancy with mum exist, if mum was not using the property as her main residence (and would only visit to "manage the property")?

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  • Lawcruncher
    replied
    Even if you did succeed in granting a licence it is not really going to help. This is because at the relevant time, i.e. when you return from your travels, you will not be able to fulfil the conditions that allow you to obtain possession without a court order. Obtaining a court order to get possession from a licensee takes just as long as to get possession from a tenant. Indeed, if you purport to grant a licence you are faced with the possibility that the tenant will argue that he has a tenancy and that the correct procedures have not been followed if you seek possession on the grounds that there is a licence. Further, if you are going to take deposits, you are in a bit of a quandary as to whether or not they need protecting.

    All in all, it is better not to muddy the waters and to grant tenancies. If they are ASTs then the procedure for obtaining possession is well-known and straightforward. Just make sure that your section 21 notices are given in good time so that you do not find yourself homeless when you return.

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  • jeffrey
    replied
    Why not:
    a. let to mum; and
    b. include in her Tenancy Agreement a power for her to sublet?

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  • avid
    replied
    I agree, got to be a tenancy, not a licence. If it was so easy we'd all do it!

    You are letting the flat out, you will not be living there. Your tenants will have exclusive occupancy. I think you need to do some further research into what exactly the differences are, or you could find yourself in trouble!

    FYI

    It is important to be aware that the 'label' on the agreement will not determine the real status of the occupiers. So if you give your tenants a license agreement, it does not necessarily mean they are licensees.
    the main indicators of a tenancy, as opposed to a licence, are normally said to be:
    • exclusive possession
    • identifiable premises (The premises do not have to constitute an entire flat or house and can be as little as a single room)
    • for a term (The term of a tenancy can either be: fixed term (ie six months, one year etc) or periodic (usually from week to week, or month to month).
    • at a rent (although this is not essential)
    • subject to the requisite intention. (Where there is no intention to enter into a legal relationship, there can be no contract and hence no tenancy)

    People who stay in accommodation on a temporary, casual, or informal basis will be licensees , eg hotel guests, most hostel dwellers, and lodgers living with relatives or friends. A person will be a licensee if they do not have a right to exclude another person from their home or if they have to occupy accommodation for employment purposes (see below on service occupiers).
    The main instances where there will be a licence rather than a tenancy are where:
    • there is no intention to create legal relations or
    • there is no right to exclusive occupation or
    • the arrangement is a service occupancy.

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  • Ericthelobster
    replied
    Originally posted by dghyphenj View Post
    How should i go about doing it? I've done loads of research on difference between a license and a tenancy and understand the differences between the two.
    Well as far as I'm aware you'd have to let it on a tenancy, based on the information you've provided.

    See http://www.landlordzone.co.uk/blog/l...cense-or-lease

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