My 2 tenants have a lodger, is my flat now HMO?

[steve42]

I rent a 2 bedroom flat to 2 tenants who share, they are not partners so they form 2 households but the flat is not HMO, right?

On a visit to the flat today I discovered they have taken in a lodger! I met the girl there, she admitted she has been paying the tenants to live in the living room since May.

1. Does that mean there are now 3 households and flat is HMO (if so this opens up a whole can of worms about fire regs. etc etc)

2. How should I proceed? I think I should write them a letter telling them they are in breech of contract and risk eviction under Section 8 unless the lodger leaves immediately. Is this the best way?

Relevant AST clauses:-
"4.3.8 Not to assign, underlet or part with or share possession of the whole or any part of the Property, without the permission of the landlord, such permission not to be unreasonably withheld.
4.4.3 Not to carry out any trade or profession upon the Property nor receive paying guests but use the Property only as a private residence for the occupancy of…."

3. If lodger would make flat HMO then it is not unreasonable to refuse permission, is it?

4. AST is 12 months from September 2007 with no break clause, could I / should I continue seek possession under Section 8 even if the lodger does leave or should I use section 21 for September 2008?

Shame, up until now they have been reasonably good tenants (apart from the cockroaches!) but they have deceived me and put me in a bad possession. I don't think I have any reasonable alternative.

[pcwilkins]

I rent a 2 bedroom flat to 2 tenants who share, they are not partners so they form 2 households but the flat is not HMO, right?

Right. HMO has 3 or more tenants. You have 2.


On a visit to the flat today I discovered they have taken in a lodger!

Woahh! No way!


I met the girl there, she admitted she has been paying the tenants to live in the living room since May.

Presume you gave them notice of this visit --- make sure you did, or it might be you who gets in trouble for "harassment".


1. Does that mean there are now 3 households and flat is HMO (if so this opens up a whole can of worms about fire regs. etc etc)

No, because you are still only renting the property to the original 2 tenants. The third is their responsibility. You are not letting the property to 3 tenants, are you?


2. How should I proceed? I think I should write them a letter telling them they are in breech of contract and risk eviction under Section 8 unless the lodger leaves immediately. Is this the best way?

If them having a lodger upsets you that much then go ahead. Personally I wouldn't worry about it; so long as their paying the rent, what's the problem?


3. If lodger would make flat HMO then it is not unreasonable to refuse permission, is it?

But lodger does not make flat HMO. A HMO is a property that is let to three or more tenants. You only let your flat to two tenants.


4. AST is 12 months from September 2007 with no break clause, could I / should I continue seek possession under Section 8 even if the lodger does leave or should I use section 21 for September 2008?

Up to you! If they've been otherwise good tenants, why bother? The next ones might do something worse!


Shame, up until now they have been reasonably good tenants (apart from the cockroaches!) but they have deceived me and put me in a bad possession. I don't think I have any reasonable alternative.

If they're good tenants, don't evict them! There are millions of bad tenants waiting to take their place, and your money. And if they've put up with the cockroaches (what are you doing about them?) they're obviously not going to make your life difficult.

They haven't deceived you, unless you've asked them if they've taken a lodger and they've said no.

Your possession (position?) is the same as it was before. Ok, so they've taken in a lodger --- but why the fuss? If she was a non-paying guest, you wouldn't be complaining, right?

What if tenants agree to get rid of lodger, then find that they can't afford to pay rent? Then you'd have something to worry about :-)

Peter

[steve42]

Peter, thank you so much for your detailed reply.

I visited the property with prior agreement to take the council pest control man round to deal with the cockroaches, so no harassement there. I offered to split the cost 50/50 because I wanted the problem resolved even if they didn't. AST says it's tenants responsibility to keep property pest free save termits and woodworm. Thats reasonably I would say.

Are you sure the lodger dosn't contstitute a 3rd household from fire safety point of view. Fires don't care about AST's, they can kill lodgers too! Anyone else care to comment?

Good point about "better the devil you know", I guess I am just a bit miffed today. I think a good chat with the tenants ought to do the trick but I wouldn't mind a "shot accross the bow" to let them know I mean business and to cover myself in case it all goes pear shaped. Could I still issue a Section 8 only to tear it up if the lodger leaves?

I did cross my mind to turn a blind eye but I have been dealing with a chip pan fire at my mother-in-laws HMO and fire sefty is on my mind at the moment, I would rather be above board and legit.

[red40]

There is no reference to tenants or AST's in the Housing Act for the purposes of HMO's, people should get away from this notion.

I have posted on the other thread steve with some pointers, some points Peter has identified are incorrect and you should be careful and possibly approach your council for there advice.

For the purposes of use of your flat it is presumed that you knew the lodger was there, it is upto you to prove otherwise.

[steve42]

Thanks Red, I still think the lodger makes a 3rd household and as such I would be caught by other HMO regulations even if I am not mandatory licencable.

I'm not sure if the lodger would be classed as a 'subtenant' or an 'Excluded Occupier' see http://england.shelter.org.uk/advice/advice-2938.cfm. Looks like I am the 'head landlord' and my tenants are the lodgers 'immediate landlord'.

Either way I'm still not happy with this, the lodger needs to go, how do I do that, polite but stern words and a Section 8 to my tenants?

[red40]

Steve unless I have missed something an excluded occupier is one that falls into any of the categories below:-

You are likely to be an excluded occupier if:
* you share accommodation with your landlord or
* you live in the same building as your landlord and share accommodation with a member of your landlord's family or
* you are living in your accommodation for a holiday or
* you do not pay any rent for your accommodation

I know I read fast but I didn't see resident landlord mentioned anywhere.

You are right in thinking the lodger is a third household and I will point you in the direction of establishing that that is the case, reference to the Housing Act 2004, section 260 says -

260 HMOs: presumption that sole use condition or significant use condition is met

(1) Where a question arises in any proceedings as to whether either of the following is met in respect of a building or part of a building—

(a) the sole use condition, or

(b) the significant use condition,

it shall be presumed, for the purposes of the proceedings, that the condition is met unless the contrary is shown.

(2) In this section—

(a) “the sole use condition” means the condition contained in—

(i) section 254(2)(d) (as it applies for the purposes of the standard test or the self-contained flat test), or

(ii) section 254(4)(e),

as the case may be; and

(b) “the significant use condition” means the condition contained in section 255(2) that the occupation of the living accommodation or flat referred to in that provision by persons who do not form a single household constitutes a significant use of that accommodation or flat.

Therefore it is upto you to prove otherwise.

Agree your lodger does have to go, definitely!

[steve42]

Not my lodger, she is my tenants lodger. Looks like she is an 'Excluded Occupier' see http://england.shelter.org.uk/advice/advice-3132.cfm (http://england.shelter.org.uk/advice/advice-3132.cfm)because:
a) she does not have exclusive use of a room, she sleeps in the living room which the tenants use.
b) there is no lock on the living room door.

Not sure if I have any power to evict the lodger myself as my tenants are her immediate landlord, not I. However, my tenants have broken thier AST with me so surely I can seek to evict them, then the lodger has no grounds to stay on. Again, do I use a Section 8, even if only as a threat?