Letting-out rooms; form of Agreement (tenancy/licence)

[diver]

I manage a friends house, its is extremely large thus I rent out 6 of the bed rooms to tenants and keep two rooms for the landlord one is a bedroom for the landlords use or if he needs it and any one he chooses to stay in it.

The other room he uses as a home office, its kept locked and the tenants have no access to that room.

I have a couple of questions, the rooms are let using a licence agreement drawn up by an ex girl friend who is a solicitor( but her field is not Landlord & Tenant).

I have copied and pasted the agreement views on its legality welcomed.

I have a tenant who is in breach of her agreement, she has failed to return to me her signed licence despite me requesting it and is now failing to abide by the terms of the licence I.e refusing to contribute to the cost of a cleaner over night guest without consent.
She has given me notice, which I am happy to accept how ever she is now in various breaches of the licence I wish to serve her with an eviction notice giving her 7 days notice.

Am I correct in assuming she is a excluded occupiers thus her position is not protected and I can give her reasonable notice of say 7 days ??

License Agreement





1. (“the Licensor”) agrees to let a room (“Bedroom 4”) (“the Residence”) in accordance with the terms set out below to

(“The Licensee”), agrees to take Bedroom 4 at the Residence in accordance with the terms set out below.

2. A security deposit (“Security Deposit”) of £ shall be payable by the Licensee to the Licensor at the commencement of the occupancy and maintained at all times during the continuation of this License Agreement. The Security Deposit shall be refundable at the end of the occupancy, provided that no Monies shall be owed to the Licensor by the Licensee and shall remain unpaid at the date of vacation of Bedroom 4. The Licensor shall be entitled to make deductions from the security deposit for any outgoings due under the terms of this agreement and remaining unpaid by the Licensee at the end of the occupancy, or for any damages against the owner’s possessions or property. The Licensor agrees to supply a breakdown of any such deductions with supporting documentation if applicable. The existence of the security deposit shall in no way limit the Licensee’s liability under this agreement.

3. The Licensee shall pay to the Licensor a fee of £ per calendar month (“the License Fee”) on the 1st of every calendar month in advance by direct debit into the Bank account specified by the Licensor from time to time. There will be no rebate for any period of time that the Licensee is away from the property during the continuation of the License.

4. The Licensee shall contribute a further £25 per month during the continuation of the License which sum shall represent the Licensee’s contribution to the employment of a cleaner to clean the Common Areas on a weekly basis and all cleaning materials.

5. The License fee includes inclusive of water rates and council tax but excludes gas electric internet & T.V License.

6. The Licensee shall be entitled to the use of Bedroom 4. The kitchen, bathroom and living room (“the Common Areas”) of the Residence are for the shared use of all occupants of the residence.

7.1 The Licensee shall have sole responsibility for the cleanliness of Bedroom 4 and shall undertake to maintain its cleanliness to the standard it was in when the Licensee first takes occupancy. The Licensee shall, in addition, undertake jointly and severally with the other occupants, to keep clean and in good repair the rest of the Common Areas of the Residence.

7.2 The Licensee shall wash all utensils and items which he uses in the kitchen and store away cutlery, crockery, pots and pans he uses on a daily basis so that the kitchen is left in a tidy and clean state for the use of other occupants of the Residence. The worktops, sink and cooker must be left in a clean state. If the dishwasher is used the dishwasher must be used in conjunction with the other occupants of the Residence and in an ecologically responsible manner.

7.3 The Licensee undertakes jointly with the other occupants of the Residence to remove household rubbish as necessary and place the bins at the entrance to the Residence for removal in accordance with Haringey Council’s refuse collection schedules. The Licensee, jointly with the other occupants of the Residence, undertakes to line the kitchen bin with bin liners, to keep food items and food waste under cover, in order to avoid the attraction of mice or other vermin and maintain a good standard of hygiene.

8. All occupants of the Residence shall respect the privacy and personal possessions of the other occupants and the other occupants Bedrooms. The Licensee undertakes to ensure that the Residence is securely locked when entering or leaving the Residence, and shall make best endeavors to protect the Residence from burglary fire and flood.

9. The Licensee will be issued with one set of keys comprising a front door key to the Residence and a chub key to the front door of the Residence. Should the Licensee lose any keys to the Residence, and should such keys not be recovered within ten days, the Licensee shall become liable for the cost of replacing the front door locks and replacement keys.

10. The Licensee may invite occasional overnight guests to the Residence subject to the Licensor’s consent or the consent of the Licensor’ delegate (as specified in Schedule 2 of this Agreement or notified to the Licensee from time to time). The Licensee shall at all times be responsible for the conduct and behavior of his guests. In the case of overnight guests the Licensor’s consent or the consent of her delegate shall be obtained in advance of arrival. Guests and the Licensees are not permitted to sleep in any Common Area of the Residence without the prior consent of the Licensor or her delegate.

11. The Licensor or her delegate will allocate the Licensee storage space in the kitchen and any other Common Areas of the Residence. Each occupant of the Residence shall respect the other’s right of enjoyment of the Residence.

12. The Licensor or her delegate shall have the right of access to the Licensee’s bedroom for the purpose of inspection, maintenance/adjustments to the heating/controls located in the bedroom, or when repairs to or maintenance of fixtures or fittings become necessary.

13.1 The Licensee shall not conduct or permit to be conducted any illegal activity at the residence nor shall the Licensee bring or allow to be brought into the Residence any illegal substance or item which may cause nuisance or damage to the Residence or any occupant of the Residence. In the event that the Licensor or her delegate becomes aware of any illegal activity or substance or item brought into or conducted in the Residence, the Licensor shall be entitled to terminate this License Agreement with immediate effect and demand the surrender of all keys to the Residence and the Licensee’s immediate vacation of the Residence. The Licensor shall also forfeit any security deposit made by him.

13.2 The Licensee or any of the Licensee’s guests shall not be permitted to smoke in any part of the Residence.

14. The Licensee shall indemnify the Licensor in full for any loss, theft or damage to the Residence and /or its contents howsoever caused by the Licensee and/or his guests. The amount of such loss, theft or damage shall be calculated or assessed by the actual cost of repair of the Residence or the repair or replacement of any item in the Residence provided that the Licensor shall have full discretion to determine the nature of any remedial action or replacement to be taken, together with full discretion to appoint such agents or suppliers as she deems appropriate in the circumstances. In the event of any loss, theft or damage occurring, the Licensee shall utilize the security deposit to cover her expenses. In the event that the amount of any such loss or damage shall exceed the amount of the security deposit paid by the Licensee at commencement of this License Agreement, the Licensee agrees to compensate and indemnify the Licensor for such excess amounts within 14 days of notice of such amount being served on the Licensee. The Licensee further undertakes in the event that the security deposit is retained against payment of any amounts arising from said loss, theft or damage, that he shall within 7 days of notice from the Licensor of such retention, make a payment of the security deposit as specified in paragraph 2 hereof.

15. The License may be terminated at any time by the Licensor giving four (4) weeks’ written notice to the license in the form set out in Schedule 1 of the Agreement to the Licensee. The License Fee shall be payable during the notice period. This License is for a minimum term of six months from the start date of this License.
Should the Licensee decide to give notice within six month the Licensee may for-fit the deposit and may be subject to legal action for recovery of loss of rent and re- advertizing costs. The License may be terminated at the end of the six month period by giving four (4) weeks written notice in the form set out in Schedule 1 of the Agreement.

16. The License shall commence on the date specified above and shall remain valid until the expiration of the notice period prescribed in paragraph 15 above or the Licensee vacates the Residence, whichever shall be the later date, provided that the provisions of paragraphs 2 and 14 will continue in full force and effect notwithstanding termination until such time as all sums and amounts owed by the Licensee to the Licensor have been discharged in full.

[tom999]

I manage a friends house, its is extremely large thus I rent out 6 of the bed rooms to tenants and keep two rooms for the landlord one is a bedroom for the landlords use or if he needs it and any one he chooses to stay in it.

Does LL actually live there?
What date did tenancy start?
Is property in England or Wales?
Was a deposit taken?
If so, was it protected?


Am I correct in assuming she is a excluded occupiers thus her position is not protected...
I believe the tenant is an excluded occupier, and as such will have few tenancy rights.


...and I can give her reasonable notice of say 7 days ??


15. The License may be terminated at any time by the Licensor giving four (4) weeks’ written notice to the license in the form set out in Schedule 1 of the Agreement to the Licensee. The License Fee shall be payable during the notice period. This License is for a minimum term of six months from the start date of this License.
Should the Licensee decide to give notice within six month the Licensee may for-fit the deposit and may be subject to legal action for recovery of loss of rent and re- advertizing costs. The License may be terminated at the end of the six month period by giving four (4) weeks written notice in the form set out in Schedule 1 of the Agreement.

Why assume 7 days is reasonable notice, when para 15. above states 4 weeks written notice is required? Only after notice period has expired, can eviction take place (a possession order from court may still be good practise, even though not necessary for 'excluded occupiers').


She has given me notice, which I am happy to accept how ever she is now in various breaches of the licence I wish to serve her with an eviction notice giving her 7 days notice. A better solution to ending tenancy than eviction, is a written 'surrender' of tenancy from the tenant.

[diver]

In answer to your questions,

The LL keeps a room and uses it on the odd occasion however uses the down stairs office/living room every day.

1. The tenant has lived there for the past two month, she initially took the room on for a month and stayed longer with consent.

2. The house is in England.

3. A deposit was taken and is held by the LL,as far as I know its not required to be held in a protected account as its not an AST ( there is no doubt she will get her deposit back in full less any outstanding bills.)

4. I would normaly give a tenant 4 weeks notice if they were not in breach of there licence agreement. However I she is in breach of her licence in a number of ways falure to meet her obligations, also I believe she has been smoking cannabis in the house I could smell it.
Thus the most serious breech " of para 13.1"
Perhaps I should report my suspicions to the police.

If I give her seven days and she fails to move can I move her stuff out what is the law regarding that ?

[tom999]

4. I would normaly give a tenant 4 weeks notice if they were not in breach of there licence agreement. However I she is in breach of her licence in a number of ways falure to meet her obligations, also I believe she has been smoking cannabis in the house I could smell it.
Thus the most serious breech " of para 13.1"
Perhaps I should report my suspicions to the police.
Yes, reporting to the Police is a reasonable action, as it's illegal (to sell, possess, or allow the use of cannabis), as well as taking place during tenancy.


If I give her seven days and she fails to move can I move her stuff out what is the law regarding that ?


License Agreement...13.1 In the event that the Licensor or her delegate becomes aware of any illegal activity or substance or item brought into or conducted in the Residence, the Licensor shall be entitled to terminate this License Agreement with immediate effect...
Even though the agreement states as above, unless there was physical proof of illegal drug activity, it would be difficult to prove in a court, if for example, tenant claimed illegal eviction.

Housing Law

Protection from Eviction Act 1977 (c.43), Part I Unlawful Eviction and Harassment, s.3 (http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Protection+from+Eviction+Act&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1499483&ActiveTextDocId=1499489&filesize=9467)
Protection from Eviction Act 1977 (c.43), Part II Notice to Quit, s.5 (http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Protection+from+Eviction+Act&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1499483&ActiveTextDocId=1499493&filesize=6052)
Legal experts on this forum may confirm, but I don't believe tenant has any legal rights to remain in property once notice period (4 weeks seems reasonable) has expired.

As a precaution, serve notice in writing, informing tenant that if her possessions are not removed before notice period ends, they will be removed by the landlord.

[Bel]

If the LL does not live there as main residence, the licencee will be protected by the Protection from Evicition Act.

You will need to serve a notice to quit in the correct format with at least 4 weeks notice ending at the end of a rent period.

If they do not leave, you will have to go to court.

The court may decide that they are a Tenant, as the agreement will be disregarded if it is found to be a sham.

[tom999]

If the LL does not live there as main residence, the licencee will be protected by the Protection from Evicition Act.


1977 Protection From Eviction Act's definition of 'excluded tenancies and licences' in s.3A(2) and (3) as below:

"3A. Excluded tenancies and licences.

(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.

(3) A tenancy or licence is also excluded if:
(a) under its terms the occupier shares any accommodation with a member of the family of the landlord or licensor;
(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the member of the family of the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part; and
(c) 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 in the same building as the shared accommodation and that building is not a purpose-built block of flats."

Jeffrey (http://www.landlordzone.co.uk/forums/showpost.php?p=133373&postcount=26) in this thread states:

Analysis
1. In s.3A(2) and (3), ONLY means something other than PRINCIPAL- the words are used as alternatives.
2. So if L has one address, that's OK.
3. If L has more than one address, one of them must perforce be his/her principal home. This is not necessarily where L spends more time than L spends at other addresses, but it must be where L's permanent 'home' is.

So, OP needs to clarify LL's living arrangements, including:

Is property LL's only address?
Is property LL's permanent home address (even though LL may spend more time elsewhere. For example, LL may 'sleep' at a friend's house, work away and occasionally come back to work in the home office at the property)?

[Bel]

Good post tom;

From the thread, it doesnt currently sound like a priciple home situation, but it could be.

[jeffrey]

If L does not reside, the 'licences' might be tenancies at law (no matter how the parties view/describe them!)

[diver]

Thank you all for the informed advice, for clarification the landlord owns the tenanted house and his parents own the adjoining house which is his familys principle home. However both the LL and his parents use one of the down stairs rooms as an office / spare room on a daily basis.

Non of the tenants have access to that room and it is in daily use by the ll and his family they use that room as part of there home as the houses are connected. It sems to make things a little more complicated !!

Would that fall under the remit of 1977 Protection From Eviction Act's definition of 'excluded tenancies and licences' in s.3A(2) and (3)

[tom999]

Thank you all for the informed advice, for clarification the landlord owns the tenanted house and his parents own the adjoining house which is his familys principle home. However both the LL and his parents use one of the down stairs rooms as an office / spare room on a daily basis.

Non of the tenants have access to that room and it is in daily use by the ll and his family they use that room as part of there home as the houses are connected. It sems to make things a little more complicated !!

Would that fall under the remit of 1977 Protection From Eviction Act's definition of 'excluded tenancies and licences' in s.3A(2) and (3)


Are the tenanted house (TH) and the family's principle home (FPH), separate houses, each with different addresses?
Which address (TH or FPH) is used for LL's:
(a) Correspondence (Personal, business, work)?
(b) Licence or Tenancy Agreement contact details?
(c) Bills?
(d) Electoral roll?

[diver]

Are the tenanted house (TH) and the family's principle home (FPH), separate houses, each with different addresses?
Which address (TH or FPH) is used for LL's:
(a) Correspondence (Personal, business, work)?
(b) Licence or Tenancy Agreement contact details?
(c) Bills?
(d) Electoral roll?


TH & FPH are separate houses, but next to each other
TH is used for LL's correspondence.
Bills in LL's name at the address.
Not sure about the Electoral role.

[tom999]

In that case, I believe that the TH may be classed as the LL's permanent home address, and the tenancy mentioned above is excluded from the 1977 Protection From Eviction Act.

[Bel]

In that case, I believe that the TH may be classed as the LL's permanent home address, and the tenancy mentioned above is excluded from the 1977 Protection From Eviction Act.

'may be' ..... or maybe not !

I am confused about who (if anyone) is sleeping regularly at the TH as their main abode, from the family. Or where the owner of TH is sleeping when he is not at the TH.

This is a tricky area and the OP would be well advised to seek professional legal advice on this as mistakes may be costly.

See http://www.landlordzone.co.uk/forums/showthread.php?t=16393

[tom999]

I don't believe LL needs to sleep at or actually be in occupation of the property to be considered a 'resident' LL (or for the property to be classed as LL's principal home premises).

Key is the legal definiton of "principal home premises" in relation to the LL's living arrangements, and how a court may interpret this.

Agree with Bel.
Specialist legal advice is always the best option.

[theartfullodger]

You might wanna try this....

http://england.shelter.org.uk/get_advice/downloads_and_tools/tenancy_checker

Which any tenant/licensee might well use if taking advice from Shelter...

Cheers!

Lodger

[jeffrey]

Any understanding of the distinction between lease/letting on the one hand and licence status on the other must be based on Street v. Mountford.
Here's twenty existing threads which touch on the distinction: http://www.landlordzone.co.uk/forums/search.php?searchid=1291160

[tom999]

Preston: "It is quite possible for a resident landlord to have more than one home - and many do. However, by definition, only one of these can be the principal home. Deciding which is the principal home is a matter of evidence. Factors to be taken into account will include where they spend most of their time, where their mail goes, the address they quote on official documentation as their home, etc. In other words, fairly common sense kind of stuff, although its not always easy to weigh the evidence in the balance and come to a firm conclusion."
Source: Eviction from shared house- is landlord 'resident'? Post #17, 2nd paragraph (http://www.landlordzone.co.uk/forums/showpost.php?p=118263&postcount=17)

From OP's posts above, LL uses TH as personal correspondence address, and LL/family uses a room in TH daily. The questions still remains, whether this would be sufficient evidence for TH to be classed as principal home address...

Street v. Mountford [1985] (http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1985/4.html&query=Street+and+v.+and+Mountford&method=boolean)

"In the case of residential accommodation there is no difficulty in deciding whether the grant confers exclusive possession. An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own." [p. 5]

"A lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and though his goods are stowed there, yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture, and has retained to himself the occupation, though he has agreed to give the exclusive enjoyment of the occupation to the lodger."

Key to the distinction between lodger and tenant seems to be whether "exclusive possession" has been granted, which appeears to be based on whether OP's agreement grants occupier "exclusive possession"; if so, this is a tenancy.

"If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy; any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant. In the present case it is conceded that Mrs. Mountford is entitled to exclusive possession and is not a lodger. Mr. Street provided neither attendance nor services and only reserved the limited rights of inspection and maintenance and the like set forth in clause 3 of the agreement. On the traditional view of the matter, Mrs. Mountford not being a lodger must be a tenant."

Ok, if LL let's a property like the bare basics of a B&B; provides tenant with a license and give them a box of cereal each week with a loaf of bread, have a cleaner - presumably this is classed as a 'services', and therefore lodger would be unprotected?

"There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who enjoys exclusive possession is not necessarily a tenant. He may be owner in fee simple, a trespasser, a mortgagee in possession, an object of charity or a service occupier. To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments. The grant may be express, or may be inferred where the owner accepts weekly or other periodical payments from the occupier."

OP's agreement in #1 states "This License is for a minimum term of six months from the start date of this License."
Is this not a fixed term, so tenancy not a licence, but an AST?

[diver]

Again thank you all for the enlightening information, I wish I had known about this site years ago when I did my first lease extension.
I shall post further and help where I can as I have had some interesting past battles and ongoing ones with my freeholder, including two sets of negligent solicitors both his and mine !!!