Are we tenants or lodgers?

by Readers Question

10:25 AM, 27th October 2016
About 2 years ago

Are we tenants or lodgers?

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Are we tenants or lodgers?

My boyfriend and I have just moved to London and have found a room to rent in a flatshare. Being new to England I’m not sure of the legalities. We are dealing with a live out landlord, however he has given us a lodgers agreement to sign. HMO

From what I understand as he does not live at the property so we are not lodgers, but tenants. It is a fixed term contract and has many conditions written into it that are the same as a tenants rights (eg must give 24 hours notice to enter our room), but I am nervous about signing a lodgers agreement as from what I understand lodgers have less rights (around bond protection and repairs) than tenants do.

Alternatively, the room is furnished, and the expenses and cleaning of the communal areas are “included in the rent”. Does this make us lodgers?

If we are actually tenants, would there be any issues with signing a contract called a lodgers agreement?

Mackenzie



Comments

Paul Green

13:58 PM, 28th October 2016
About 2 years ago

I would suggest you are tenants, and therefore need to sign a assured short hold tenancy agreement (AST) the minimum term in England and Wales is no less than 6 months. You can't be lodgers if the landlord does not permanently live at the address and share facilities with you like the living room, kitchen, & bathroom. What he Is doing sounds illegal. Seek legal advice and don't sign anything to you understand your legal position. I would guess hes trying to skirt around the law by fronting the AST tenancy as a lodgers agreement, which it clearly ain't...You have very little rights with a lodgers agreement compared to an AST. For example if you pay you rent monthly, he only has to give you 1 months notice and not 2 months, If you pay weekly he only has to give you 1 weeks notice and not 2 months. He does not need to go to court to gain possession of his property. He does not need to protect your deposit, he can just keep it, who's to say he will give it back, your have no redress to the law. I doubt he needs a gas safety certificate, what if the boiler is seeping carbon monoxide. He does not need a CO detector, all for your safety. And a raft of other legislation he will not have to conform with if you sign up as lodgers. Buyer beware...Good luck...

John Frith

14:50 PM, 28th October 2016
About 2 years ago

Hi Mackenzie,

If it can be shown that the landlord is not resident, then it is my opinion (I am not an expert) that the lodgers agreement is null and void. You would effectively be moving in without an agreement. In the UK there is great default legal protection for tenants so I would suspect that this would mean that you would actually be in a stronger position than if you had signed the normal Assured Shorthold Tenancy (AST) that he should be offering you.

Unless your heart is set it sounds like a good one to avoid.

H B

17:51 PM, 28th October 2016
About 2 years ago

You are definitely tenants so you can ignore what the contract says.

Also as tenants the landlord should have protected your deposit withathird party. I suspect that he has not. I recommend that you read up on landlords' responsibilities to protect deposits and the consequences of not doing so.

Paul Green

22:51 PM, 28th October 2016
About 2 years ago

Hi Mackenzie this should help you unpick the world of renting, a Guide to renting advising tenants and landlords of there legal responsibilities. Issused by the government.uk

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/496709/How_to_Rent_Jan_16.pdf

Buy the way all landlords should issue one of these to there tenants by law! Before you sign a AST, just like you need to see the EPC & gas certificate before the tenancy starts.

Paul Green

23:06 PM, 28th October 2016
About 2 years ago

Hi this should explain all a Link to SpareRoom.co.uk explaining the difference between lodgers and tenants.

http://m.spareroom.co.uk/content/info-landlords/whats-the-difference-between-a-tenant-and-a-lodger/

And a link from the citezens advice bureau.

https://www.citizensadvice.org.uk/housing/renting-a-home/subletting-and-lodging/lodging/lodging/

Hope this helps and empowers you with the knowledge you need as a tenant or if your a landlord reading this for that matter. May be even give him a copy to help educate him too...

Colin McNulty

8:43 AM, 29th October 2016
About 2 years ago

> "the room is furnished, and the expenses and cleaning of the communal areas are “included in the rent”. Does this make us lodgers?"

No.

I agree with H B. The landlord can call the document you sign a "Lodger's Agreement" if he wants, but if he is a live out landlord, then you are a tenant, and irrespective of what the title of the document says, the law says you have an Assured Shorthold Tenancy (AST).

He can't remove his responsibilities by writing it into a contract that you sign. For example, as a tenant with an AST you are entitled to a minimum 6 months tenancy, after which it automatically becomes a periodic tenancy and the landlord has to give you 2 months notice if he wants you to leave, by issuing a Section 21 eviction notice to you. He can't put into a "Lodger's agreement" that you have to leave with only 2 weeks notice. Well he can put it in, but no court would enforce that clause.

Ironically as it may seem, this is actually a pretty good position for you to be in. Because the landlord thinks he's giving you a lodger's agreement, he's probably unlikely to perform the duties and responsibilities necessary to satisfy an AST, which probably will mean he'll find it very hard to evict you as he'll be unable to serve a valid Section 21. So actually, your tenancy may be more secure that it would otherwise normally be!

Michael Barnes

18:36 PM, 29th October 2016
About 2 years ago

Reply to the comment left by "Colin McNulty" at "29/10/2016 - 08:43":

I'm with Colin: If you sign the agreement you will have a AST.
It is the facts of the situation that determine if you are a lodger or a tenant. If the landlord is not resident, then you are a tenant.

Contrary to what John Frith says, the contract will not be null and void, but any clause that seeks to take away any right as a tenant will not be enforceable in court.

Highland Lass McG

19:54 PM, 29th October 2016
About 2 years ago

Here is a situation we would like advice on.

We are considering buying a flat where we will rent out 2 of the rooms and use the 3rd bedroom for ourselves. We will share the living room, kitchen and bathroom with the 2 'residents' and there will be no locks on the rooms.

However this will not be our main home but during the year we will live there off and on for a total of several months. Also our daughter could come and stay occasionally during times that we are not there.

Can the 2 'residents' be our lodgers? or do they have to be tenants, even though they will be sharing facilities with the landlords.

Thanks for your advice

Michael Barnes

11:26 AM, 30th October 2016
About 2 years ago

Reply to the comment left by "Highland Lass " at "29/10/2016 - 19:54":

As it is not your home, I would guess that they are not lodgers (but I don't know).

However, it would be a HMO.

John Frith

11:53 AM, 30th October 2016
About 2 years ago

Reply to the comment left by "Michael Barnes" at "29/10/2016 - 18:36":

Michael, are you a lawyer (to say that the contract would NOT be null and void)? As I said in my post I am definitely NOT an expert, but my understanding is that a contract made in bad faith can be argued to be null and void. If I've understood incorrectly, please explain why.

I must admit though that if Mackenzie signed it now, being aware of the misrepresentation would muddy the issue.

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