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View Full Version : Lodgers and the definition of shared facilities



deshg
02-10-2011, 16:56 PM
Hey everyone,

One of my mums friends is having a nightmare renting out part of her house and I said i'd see if anyone on here could help :) She has a 2 storey house near Oxford and has been renting a room out upstairs for a few years. A while back she added a kitchen upstairs and put a lockable door at the bottom of her stairs (so the tenant/lodger still needs to go through her part of the house to access theirs but it's locked). Her new agent advised her to get it rated separately (with separate council tax etc, which seems like a ridiculous idea but that's a different story!) so she contacted the planning office who came round said they were unlikely to let it be split as they don't want to reduce the houses in the area and that it was illegal as it was because of the door/kitchen facilities.

Most of her income comes from the rental of the upstairs and she is now without a tenant/lodger and is not sure what to do as she doesn't want to break the law but needs the money to live. I haven't mentioned to her yet that as she has a standard residential mortgage splitting the house or taking on a proper tenant is most likely a violation of her mortgage anyway (but hopefully a lodger is generally more acceptable).

My understanding is that if she removed the door at the bottom of the stairs then this would surely remove any illegality from a planning perspective (as long as the upstairs wasn't being let out separately), from what i understand there's nothing illegal about adding another kitchen upstairs in your own home as long as it's done legally and allows for fire escapes etc.

I appreciate there may be an issue claiming they're a lodger even without the door as they have a separate kitchen and bathroom and they realistically don't share facilities, but am I right in saying that if she personally agreed to clean the upstairs once a week for example then this would ensure that she entered the space on a regular basis and hence they would be legally a lodger and not a tenant. And there would be no illegality from a planning perspective as you're not splitting the house you've just added a kitchen in a weird place and have a lodger?

I would greatly appreciate any advise anyone can give on this as she's very distraught and is in a bad position not earning any money from renting it out.

Thanks so much for your help and any advice anyone can give.

Dave

westminster
03-10-2011, 12:47 PM
I'm assuming that your mother didn't get the door/upstairs kitchen approved by Building Control? This is nothing to do with planning consent, but about safety and complying with building regulations.

It would be advisable to remove the door as, aside from the safety aspect, its existence means that your mother would be granting exclusive possession of the upstairs (but I'll comment further on this below). If she grants exclusive possession then she would be granting a tenancy, and, as you say, this is likely to be in breach of her mortgage rules (there are other reasons for not granting a tenancy - see this link (http://www.lodgerlandlord.co.uk/2010/05/12/why-you-shouldnt-give-your-lodger-a-tenancy/)).

However, the issue of whether the occupier is a tenant or a licencee is separate to the issue of whether the tenancy or licence is excluded.

Lodger is another word for an excluded occupier (excluded under s.3A Protection from Eviction Act 1977 (http://www.legislation.gov.uk/ukpga/1977/43/section/3A)). This applies when the occupier 'shares any accommodation' (N.B. not 'facilities') with the landlord and means that the landlord doesn't need a court order to evict the lodger, this being what gives a lodger/excluded occupier very little security of tenure. If you look further down to subsection s.3A(5) you'll see that 'accommodation' is defined as including 'neither an area used for storage nor a staircase, passage, corridor or other means of access'.

So, even if your mother provides services such as clean sheets weekly, thereby not granting the occupier exclusive possession (i.e. so that he's a licencee not a tenant), if she does not share accommodation with the occupier then his tenancy or licence will not be excluded. (And aside from the undesirability of needing to obtain a court order should your mother wish to evict the occupier, it may also be in breach of the mortgage rules to grant a non-excluded tenancy or licence).

A sham arrangement won't get round this - no point pretending that your mother uses the upstairs bathroom if the reality is that she never does (and has no need to because she has her own bathroom). Perhaps one solution would be to remove cooking facilities from the upstairs kitchen, but keep fridge/kettle/toaster/sink, thus limiting the time the lodger might spend using the downstairs kitchen. (The most straightforward solution would be to remove the upstairs kitchen completely, as I think your mother would still need building control approval for a kitchen sink upstairs).