Flatshare - Excluded Tenancy question

[Daytona]

A friend is letting out some self contained rooms in her house and going to use a licence. I rent my own home so I am familiar with ASTs. I believe she should be using a tenancy, but I'm unsure whether she can use a AST or whether it's just a common law tenancy.

The room arrangements are -

Exclusive use of sitting room with attached bedroom and ensuite. This is lockable and just like a flat. The landlady does not have any right of entry beyond that given by law.
Shared use of kitchen and grounds.

The government documentation only makes references to a Tenancy. Which sort of tenancy can it be ? If it's an AST does the 6 month minimum right of occupation apply, or is it rendered void by the shared nature of the kitchen ? Are there advantages or disadvantages to using an AST ?

Thanks

Daytona

[Paul_f]

The owner of the property appears to be in residence therefore any other occupant is a lodger and nothing else. Even though they might have exclusive use of sitting room bedroom & bathroom, but shared facilitites eslewhere means that they don't have exclusive use of everything, and to have a landlord/tenant relationship everything this person were to use must be entirely self-contained. You can't have a half-and-half situation.

There's no need for any written agreement [but there's nothing to stop you having one, but not to establish the rights of the person as it could be meaningless] as the lodger is neither tenant nor licensee.

[Daytona]

Thanks Paul. I'm confused now, as the government guide "Letting rooms in your home: a guide for resident landlords" (http://www.odpm.gov.uk/stellent/groups/odpm_housing/documents/divisionhomepage/036727.hcsp) says -

"1.5 So what is the difference between a tenancy and a licence to occupy?

The most important qualification for a letting to be a tenancy is that the occupier is granted exclusive use of at least one room. So if, for example, he or she has her own room and you do not have the right under the agreement to enter it without permission, the letting would probably be a tenancy. If you agree to provide some form of attendance or service which requires you (or someone working for you) unrestricted access to the occupiers room, the letting would be a licence to occupier. If the occupier has to share his or her room (or all of his or her rooms, if more than one) with someone he or she did not choose, the letting would be a licence.

To be a tenancy, the letting must also be for a particular room (or rooms) that is, without you being able to move him or her around."

In this case the occupier is granted exclusive use of at least one room therefore it has to be a tenancy.

Can you point me to the relevent law ?

Thanks

Daytona

[Paul_f]

Having done some more research on the matter I have to agree with you.

Also Phillip Hopkins Legal Editor has answered the same question in the Lettings Update Journal and states "..........if in doubt issue an AST". It really comes back to the very famous Street v. Mountford case in that rented rooms within a property with exclusive rights of possession was in fact deemed to be a lease and not a licence. So probably the resident landlord does not appear to be the case here!

[Daytona]

Apologies for the delay -

Thanks Paul - much appreciated

Before I could speak to her she went ahead without any contract, as she appears to have done before. I've told her that the default contract in this situation will be an AST and printed off a standard contract and the government guides for her information.

I think that I get the Lettings Update Journal syndicated via http://www.letting-network.com/eletter.php - it's a superb resource, but unfortunatley I didn't think to look there !

[Poppy]

Why issue keys (other than to the front door) to what ought to be lodgers in your own home? In the IT industry there is a saying "KISS - keep it simple".