My tenant has found a lodger - advice needed re new tenancy agreement

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    My tenant has found a lodger - advice needed re new tenancy agreement

    Hi all

    I rent a property to a tenant under an AST (non-resident LL). He has been in situ for ~3 years. No problems, rent up-to-date, deposit protected etc.

    However, I have just learnt that he has been sub-letting one of the bedrooms to a lodger, in breach of his tenancy agreement. I am not opposed to a lodger as long as rent payments continue and the property is being looked-after, which it is.

    We are in the process of negotiating a rental increase (which has been drawn out for a LONG time) but my current AST template states that the tenant must not sub-let. He has asked to amend the proposed AST and to add various clauses relating to non-liability should the lodger suffer any injury etc. For some reason alarm bells are ringing. Also, I did suggest that the tenant and lodger enter into a joint AST with me but this was declined.

    Can anyone offer any recommendations when drawing up the new AST please? As I say, I'm happy for both to remain. Is it just a matter of amending the AST to "not to permit lodgers without prior consent of the landlord" and then leaving tenant and lodger to agree their own license agreement? I'm aware that I have no contract with the lodger.

    If my tenant were to abscond but the lodger remain, is it very messy to evict the lodger?

    Finally, by agreeing to the lodger am I creating a non-licensable HMO, thus creating additional health and safety hoops for me to jump through? I fear I'm opening a can of worms...

    Thanks

    #2
    As long as there are two people, the tenant and the lodger living there, it won't be an HMO.

    Your tenant can't include anything relating to their (i.e. the tenant's) lack of liability for an issue relating to the tenant into an agreement with you (the landlord).
    It makes no sense, as the agreement relates to their relationship with you, not the lodger, who isn't a party to the contract.
    It wouldn't protect them from any claim made by the tenant against them.

    If the tenant absconds but the lodger remains, it requires the same effort and cost to evict them as it would to evict a tenant who didn't want to move out.
    If it happens, you must not accept rent from the tenant.

    You should check your insurance and any mortgage terms and conditions (and, if the property is leasehold, any superior lease) as it may preclude an occupant who is not a tenant.

    While it'a bit academic, "prior" consent is no longer possible, and it should probably be consent (ideally, "which will not be unreasonably withheld.") and which is then given.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      Without answering your question directly., this is yet another example of how intrusive legislation which is supposedly there to protect tenants actually harms them.

      My child lives near London. She doesn't want to live alone. On the other hand (because she is ill) she wants to be able to control who she lives with, whether she lives with anyone (or covers the rent herself), or whether (at times) I, as her parent, come to live with her to support her.

      In a normal world it should be easy to go to a letting agent, explain what we want, and get an agreement from them that she is the tenant, she is responsible for the rent, but can take a lodger (or parent, paying or otherwise) if and when she wishes. But for all the reasons you give, this is not generally an accessible option to her. And those who suffer are the most vulnerable in society (and also, often, the most reliable tenants).

      Rant over.

      Comment


        #4
        Don't change the terms of tenancy, get rent increase via s13 notice. Serve s8g12 for the subletting to lodger (shot over bows...) and s21 just-in-case.
        http://www.landlordzone.co.uk/conten...for-possession

        An s13 rent increase is not long drawn out: How come yours has been?

        (Your easiest quickest route to eviction is under current tenancy using s21: Any new tenancy or changed terms is likely to make that tougher, more requirements, more things for tenant to argue you got wrong...)

        Personally I'd evict tenant for sub-letting without permission: Wonder what other terms he's ignoring..... when was your last formal inspection & date of previous??
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          #5
          QED artful

          As a matter of interest OP, how do you know she has a lodger? Perhaps it is just the case that she is living with her girlfriend, boyfriend, friend? That would not be sub-letting, unless your agreement says "you shall not live with your boyfriend or have sex in this property".

          You say you don't care whether she has a lodger, so why do you (and others) sign tenancy agreements to that effect if the property is more than suitable for occupancy by more than the one named tenant? Subletting the whole thing is a different matter. Things in tenancy agreements should be things you DO care about.

          Comment


            #6
            I visited the property and it was clear that there was another adult living there. My tenant admitted that he had been letting one of the rooms to a friend and taking money for it.

            I think it's prudent to include a clause in the agreement re. lodgers. I wouldn't want my tenants to move anyone in without my consent, after all, they could be anyone! I don't feel this is unreasonable...

            Comment


              #7
              Having a clause requiring your agreement for lodgers, guests, other occupants etc is fine, no problem. My tenancies have such clauses. But that doesn;t mean it won;t happen, any more than clause saying rent must be paid in full on time stops tenants failing to do so.

              But you cannot require tenant to accept any change or new tenancy & I do not see the advantage to you making any changes: Did I misunderstand?
              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

              Comment


                #8
                The new AST is merely to implement a rental increase. I may take your advice regarding S13 and just leave the tenancy agreement as is... I have the latest Form 4 template - all looks straightforward and the guidance notes are very clear.

                Thanks

                Originally posted by theartfullodger View Post
                Having a clause requiring your agreement for lodgers, guests, other occupants etc is fine, no problem. My tenancies have such clauses. But that doesn;t mean it won;t happen, any more than clause saying rent must be paid in full on time stops tenants failing to do so.

                But you cannot require tenant to accept any change or new tenancy & I do not see the advantage to you making any changes: Did I misunderstand?

                Comment


                  #9
                  New AST has (probably) new requirements (GSC, EPC, "How to rent" served - served rather than you happen to have, "Right to rent" checks done) and delays any s21 expiry date at least 6 months: Why give yourself those problems??
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    #10
                    The time limit on section 21 notices would not apply as the new AST would surely be a replacement tenancy.
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    I do not answer questions through private messages which should be posted publicly on the forum.

                    Comment


                      #11
                      The new AST won't be new it'll be a replacement so the new rules won't apply - unless I'm wrong. I hope I'm right because I gave a replacement tenancy earlier this year.

                      Comment


                        #12
                        Thought he was suggesting a new AST with joint tenancy of current tenant PLUS lodger: Doesn't sound like replacement to me...
                        See s21(7) HA 1988

                        (7) For the purposes of this section, a replacement tenancy is a tenancy—

                        (a) which comes into being on the coming to an end of an assured shorthold tenancy, and

                        (b) under which, on its coming into being—

                        (i) the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and
                        (ii) the premises let are the same or substantially the same as those let under the earlier tenancy as at that time
                        Same property, same tenant should be replacement though...
                        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                        Comment


                          #13
                          AFAIK if new Agreement requires a new min fixed term then it is a NEW AST.
                          'Replacement' is misleading, same T, same conditions = extension of original status at time of agreement.
                          ie rent increase agreed or by s13 would be extension only if no other changes required.

                          Comment


                            #14
                            The term "replacement tenancy" is clearly defined in s21(7) of the 1988 Act and s215B(4) of the 2004 Act (in basically the same way), as noted by theartfullodger.

                            Section 41 of the Deregulation Act 2015 defines which tenancies the new rules apply to, which is all new AST that came into being after the provisions came into force (1s Oct 2015), other than SPT arising from original tenancy pre-dating that date.

                            A new fixed term with the same LL & T falls into both of those definition, so it would be a new AST with the associated rules on How to Rent, GSC, EPC, etc. Section 21 can be served at any time, since it's past the first 4 months of the original tenancy, but the 6 months validity from issue time limit rule applies on the notice (which is what I meant by my earlier unhelpfully vague post).
                            I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                            I do not answer questions through private messages which should be posted publicly on the forum.

                            Comment

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