Taking over T's lodgers

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Taking over T's lodgers

    Just need a quick bit of advice. I have a long standing trusted T who I rent a house to at a low rent. I gave him permission to take in up to 3 lodgers at his discretion. I have nothing to do with the lodgers who pay rent direct to T. T has been on holiday for a few months and now wants to give notice when he comes back to UK. The lodgers have asked me if they can stay on in the house. I want to move back into the house myself, but I would be happy to keep the lodgers myself. I tend to travel for extended periods of time, so some of the time the lodgers would be left alone in the house. I am worried that, by some technicality, there is a chance that a new tenancy could be created. Of particular concern is that I may be away on the day the current T moves out and only able to move in myself a few weeks later.

    Please tell me:

    What do I need to do contractually to take over possession from T and keep the lodgers as lodgers not new tenants. Is there a lodger agreement I can get them to sign?

    Thanks

  • #2
    Originally posted by bureaucrazy View Post
    I have nothing to do with the lodgers who pay rent direct to T..
    I have not taken any rent from the lodgers. The Tenant went on holiday just before Xmas and he will be back next week. He plans to leave end of March or End of April but has not given formal notice yet. He left all his personal stuff at the house, carried on paying me rent and carried on paying council tax and utilities which are all in his name while he has been on holiday. It's still on the original AST term (not periodic). I hope that clarifies. I'm mostly concerned about the handover if I move back in while the lodgers are there and then whether I must stay there every single day to avoid creating a tenancy.

    If I have to, I can insist that when T vacates, his lodgers go with him. Then I can move in myself, but I don't want to throw them out and then have to look for new lodgers myself.


    Thanks

    Comment


    • #3
      Sorry I missed the point about the rent payment. I've deleted my post as it appears irrelevant now.
      The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

      Comment


      • #4
        Do you know whether your T has some sort of formal agreement with the lodgers, such as a house share agreement? If he does, what does that say about changing the T that the lodgers report to.

        Someone with better legal knowledge than me may disagree, but it may be an idea that you arrange to replace T on a specific date, you move in, T moves out. At the same time, you arrange that the lodgers sign a house share agreement with you and you effectively become owner in residence with 3 lodgers.
        I offer my advice freely, but I am not an expert, solicitor or judge. It is simply my experience of being a landlord and what I have learnt along the way. I make no warranty for my opinion.

        Comment


        • #5
          Thanks Dinkum. I didn't know there was such a thing as a formal house share agreement. I think T has a very informal arrangement with his lodgers, probably not written down. I have a written AST with the tenant and it says the tenant is allowed to sublet with the landlords permission (not to be unreasonably withheld).

          I will investigate house share agreements. Is there a legal stationers such as Oyez that produces a standard one or do I have to write my own?

          Comment


          • #6
            Clickdocs have one

            http://www.clickdocs.co.uk/rent-a-room-england.htm
            I offer my advice freely, but I am not an expert, solicitor or judge. It is simply my experience of being a landlord and what I have learnt along the way. I make no warranty for my opinion.

            Comment


            • #7
              Current lodgers are resp of your T, not you.Anyone remaining after expiry of Ts NTQ would have to be evicted by you, by due process, with your T liable for costs. Your T should serve his lodgers reasonable Noticeto vacate before expiry of his NTQ. Once you have regained possession, you are now free to offer agreements to anyone who applies. Poss advisable for current lodgers to find alt overnight accom at end of T NTQ if they wish to re-apply

              Comment


              • #8
                Originally posted by bureaucrazy View Post
                He plans to leave end of March or End of April but has not given formal notice yet.... It's still on the original AST term (not periodic). I hope that clarifies. I'm mostly concerned about the handover if I move back in while the lodgers are there and then whether I must stay there every single day to avoid creating a tenancy.

                If I have to, I can insist that when T vacates, his lodgers go with him. Then I can move in myself, but I don't want to throw them out and then have to look for new lodgers myself.
                There is no ideal, legally clear cut way to go about this, unless the T vacates and takes the lodgers with him, and you find new lodgers.

                First, there's the issue of ending the tenancy.

                Unless there's a break clause in the contract, the T cannot give notice to end the fixed term tenancy; he can only give NTQ if the tenancy becomes periodic. Or he can vacate at fixed term expiry, but that would mean lodgers vacating, too.

                Assuming there is no break clause, then I would suggest executing a Deed of Surrender when T moves out, just to cover your back. Although the lodgers would be remaining in occupation (so that the T wouldn't be yielding up vacant possession), it's still better than nothing. (Template in this link - prepare two copies, one for you, one for the T).

                IMO it would be advisable to move in immediately the T vacates/surrenders. As I said, there is no ideal way, with the lodgers remaining in situ, but I'd say there is greater potential risk that the lodgers could succeed in arguing that they are AST tenants if you are not in occupation when the T's tenancy ends. That is because of s.3A Protection from Eviction Act 1977; this is what makes a lodger an 'excluded occupier' - excluded as in no court order required to evict.

                s.3A (2) A tenancy or licence is excluded if—

                (a) under its terms the occupier shares any accommodation with the landlord or licensor; and

                (b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

                You do not have to physically be in occupation every single day, and you can go on holiday or travel for work purposes, but the premises must genuinely be your only or principal home.

                You should grant the lodgers individual contracts/licences for their rooms, not a joint 'house share' agreement.

                http://www.lawpack.co.uk/landlord-an...product711.asp

                And buy this book:

                http://www.lawpack.co.uk/landlord-an...roduct1703.asp

                Its author also has an associated website:

                http://www.lodgerlandlord.co.uk/

                Comment


                • #9
                  Originally posted by mariner View Post
                  Poss advisable for current lodgers to find alt overnight accom at end of T NTQ if they wish to re-apply
                  Either the lodgers genuinely vacate or they don't. There is no point in a sham arrangement whereby they pretend to move out for one night.

                  Comment


                  • #10
                    Isn't this house now a HMO?

                    Comment


                    • #11
                      Thanks for the detailed reply. I was mistaken in my previous post and having checked again, the tenancy is already periodic as it has gone on more than 12 months so T can give notice (but does he have to do anything special with regards to non-vacant possession?)

                      The bit I am worried about is this:

                      If T gives notice and moves out leaving the lodgers behind, if the lodgers are not granted any license to stay, they are then squatters who are protected from eviction, etc and the landlord is not allowed to move in. I am concerned that by moving in at the end of the tenancy, with lodgers in situ, I could be breaking the law. I want to make sure that well ahead of T moving out, the lodgers agree to a license granted by the landlord to be the landlords lodgers starting from that date and that I have the right to move back in without being accused of anything.

                      I assume that provided the lodgers agree to accept the license in advance of the end of the tenancy, then I shall be allowed to move in as they understand and accept that I shall be taking possession of the property and granting them a right to stay on?

                      Comment


                      • #12
                        Originally posted by bureaucrazy View Post
                        I was mistaken in my previous post and having checked again, the tenancy is already periodic as it has gone on more than 12 months so T can give notice (but does he have to do anything special with regards to non-vacant possession?)
                        T's NTQ will end the tenancy, regardless of him yielding up vacant possession or not. However, leaving the lodgers behind (who'd become trespassers, but ones you couldn't evict without a court order) would mean that T is 'holding over' and would remain potentially liable for mesne profits (i.e. a sum of money equivalent to rent, but not 'rent' because there is no tenancy).

                        If T gives notice and moves out leaving the lodgers behind, if the lodgers are not granted any license to stay, they are then squatters who are protected from eviction,
                        Trespassers, not squatters.

                        I am concerned that by moving in at the end of the tenancy, with lodgers in situ, I could be breaking the law. I want to make sure that well ahead of T moving out, the lodgers agree to a license granted by the landlord to be the landlords lodgers starting from that date and that I have the right to move back in without being accused of anything.
                        If the T serves written, valid NTQ, then his notice ends the tenancy. You would then be theoretically free to grant a new tenancy or licence, commencing the day after T's NTQ.* The problem is s.3A(2)(b) PEA1977 which requires that - immediately before the tenancy or licence was granted - the LL lived in the property as his only/principal home. If you grant 'lodger licences' before you move in, whilst the current T's tenancy is still in place, then effectively the licences would not be excluded under this section; by default, they'd be AST tenancies.

                        As I said already, there is no ideal, clear cut way to proceed unless everyone genuinely vacates when the tenancy ends. If that doesn't happen, then whatever you do will be a bit of a bodged job and leave you exposed to argument or allegation.

                        I'm not sure, however, that by moving in immediately after the T vacates, with the lodgers in situ, and the T and lodgers happily agreeing for you to move in, and lodgers signing lodger contracts with you, would be 'breaking the law'. For a start, look at s.1 PEA1977, (which deals with unlawful eviction/harassment), subsection s.1(3) (the rest is relevant, too, so read it all, but just by way of example):

                        (3) If any person with intent to cause the residential occupier of any premises—
                        (a) to give up the occupation of the premises or any part thereof; or
                        (b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof;
                        does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence.


                        You will see that to commit an offence under this subsection, you must be acting with the intent of causing the occupier to give up occupation, and you must do acts calculated to interfere with the peace/comfort etc. You wouldn't be doing any of these things.

                        IMO the least contentious way to proceed is to move in on the last day of the T's NTQ (expiring midnight of that day), with the T's permission, and, once installed, grant lodger licences commencing the day after. That way you can truthfully say that you lived there immediately before granting the licences. But that is just my unqualified opinion, and there can be no guarantee that the T/lodgers will cooperate as you anticipate, nor that the lodgers may not later question their occupying status. There may be other ways in which you can cover your back, perhaps some sort of document agreed in advance, but you'd need to consult a lawyer specialist in landlord and tenant law.

                        ====
                        * In normal circumstances, this would be highly inadvisable unless you were sure that T could be relied upon to vacate, because if he didn't you'd end up in breach of contract with the new occupier.

                        Comment


                        • #13
                          One final point. It is important to ensure that the T's notice is valid. It should ideally be given in a letter addressed to the address for serving notices (usually given in the tenancy contract). If rent is payable monthly, then the notice length is at least one month. It must also expire on the last day of a tenancy period. Are you clear on tenancy periods? (not the same as rental periods).

                          Comment


                          • #14
                            But a notice can be validated by the landlord accepting it, right?

                            Comment


                            • #15
                              Yes, but in this case, where there are several 'grey' areas, I think it's important that the T's notice inarguably ends the tenancy at notice expiry.

                              Comment

                              Latest Activity

                              Collapse

                              • S21 or S8 to evict a tenant
                                BlueMystery
                                I have a tenant who the local council have provided the deposit bond for. He has been nothing but a pain paying his rent and has always been 1 month late or 6 weeks maximum, paying at the end rather than the beginning. He was initially on a 6 months AST, which reverted to one month rollover in the absence...
                                26-07-2017, 19:21 PM
                              • Reply to S21 or S8 to evict a tenant
                                KTC
                                That ....
                                26-07-2017, 21:41 PM
                              • Long Term Tenant - how to protect both LL and Tenant
                                Paul4321
                                Hi All,

                                I'm hoping for a little guidance. I'll almost certainly be following up with some professional advice but hopefully some folks here will have been in a similar situation and can offer some advice. I have done a quick search but not found anything obvious.

                                I already...
                                20-07-2017, 10:07 AM
                              • Reply to Long Term Tenant - how to protect both LL and Tenant
                                KTC
                                A tenancy of more than 3 years to be executed as deed (Law of Property Act 1925).

                                A tenancy of less than 7 years - landlord's repairing obligations (Landlord and Tenant Act 1985).

                                A tenancy of more than 7 years - registration with the Land Registry.

                                If you're going...
                                26-07-2017, 21:39 PM
                              • Reply to S21 or S8 to evict a tenant
                                MrShed
                                I dont see a benefit in Section 8 in this circumstance as the grounds are discretionary not compulsory (is my reading of the situation anyway).

                                Its worth issuing it anyway but then proceed down S21 when it expires?
                                26-07-2017, 21:14 PM
                              • One tenant moving out and two remaining - who pays for the checkout/inventory?
                                IoIo
                                Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)? England

                                Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only? Three people all listed as the Tenant under the agreement

                                Q3 – What date did current...
                                26-07-2017, 16:38 PM
                              • Reply to One tenant moving out and two remaining - who pays for the checkout/inventory?
                                MrShed
                                Yes I cant agree with JK on this one, although I agree its an elegant solution in theory. A few issues with it though:
                                - Subletting
                                - The previous tenant in effect remains a tenant (in the eyes of the law)
                                - Any damage that has been caused up to now should in fact be deducted three...
                                26-07-2017, 21:08 PM
                              • Reply to Long Term Tenant - how to protect both LL and Tenant
                                Logical.Lean
                                I would make a list of the improvements / repairs which are required and get some ball park quotes for the work from trades(wo)men in the area.
                                Then I would offer a 6 month rolling tenancy, at a fair rent. I would ask the tenant to quote for a few of the simple jobs, and pay him once completed....
                                26-07-2017, 21:06 PM
                              • Reply to One tenant moving out and two remaining - who pays for the checkout/inventory?
                                Wright76
                                I can't see the departing tenant agreeing to withdraw their notice and nor should they simply to get their deposit back.

                                They are ALL responsible. The tenancy Is ending for all of them and they are jointly responsible for any damage.

                                I'm amused by your insistence for a professional...
                                26-07-2017, 20:43 PM
                              • Ending tenancy early / returning advance rent
                                purpleangel
                                Landlord has served me with S21 to leave property by 10 September. 12 month AST in England. Tenancy has been difficult last few months, major delays in repairs and I am still waiting to be refunded for a locksmith call out a month ago. I paid 12 months rent in advance due to having CCJs.

                                ...
                                25-07-2017, 21:35 PM
                              Working...
                              X