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Nov, 2014

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  1. #1
    Join Date
    Apr 2010
    Posts
    161

    Default Taking over T's lodgers

    Just need a quick bit of advice. I have a long standing trusted T who I rent a house to at a low rent. I gave him permission to take in up to 3 lodgers at his discretion. I have nothing to do with the lodgers who pay rent direct to T. T has been on holiday for a few months and now wants to give notice when he comes back to UK. The lodgers have asked me if they can stay on in the house. I want to move back into the house myself, but I would be happy to keep the lodgers myself. I tend to travel for extended periods of time, so some of the time the lodgers would be left alone in the house. I am worried that, by some technicality, there is a chance that a new tenancy could be created. Of particular concern is that I may be away on the day the current T moves out and only able to move in myself a few weeks later.

    Please tell me:

    What do I need to do contractually to take over possession from T and keep the lodgers as lodgers not new tenants. Is there a lodger agreement I can get them to sign?

    Thanks

  2. #2
    Join Date
    Apr 2010
    Posts
    161

    Default

    Quote Originally Posted by bureaucrazy View Post
    I have nothing to do with the lodgers who pay rent direct to T..
    I have not taken any rent from the lodgers. The Tenant went on holiday just before Xmas and he will be back next week. He plans to leave end of March or End of April but has not given formal notice yet. He left all his personal stuff at the house, carried on paying me rent and carried on paying council tax and utilities which are all in his name while he has been on holiday. It's still on the original AST term (not periodic). I hope that clarifies. I'm mostly concerned about the handover if I move back in while the lodgers are there and then whether I must stay there every single day to avoid creating a tenancy.

    If I have to, I can insist that when T vacates, his lodgers go with him. Then I can move in myself, but I don't want to throw them out and then have to look for new lodgers myself.


    Thanks

  3. #3
    Join Date
    Feb 2005
    Location
    Hampshire
    Posts
    6,126

    Default

    Sorry I missed the point about the rent payment. I've deleted my post as it appears irrelevant now.

  4. #4
    Join Date
    Sep 2012
    Location
    Sometimes Kent, sometimes France
    Posts
    135

    Default

    Do you know whether your T has some sort of formal agreement with the lodgers, such as a house share agreement? If he does, what does that say about changing the T that the lodgers report to.

    Someone with better legal knowledge than me may disagree, but it may be an idea that you arrange to replace T on a specific date, you move in, T moves out. At the same time, you arrange that the lodgers sign a house share agreement with you and you effectively become owner in residence with 3 lodgers.
    I offer my advice freely, but I am not an expert, solicitor or judge. It is simply my experience of being a landlord and what I have learnt along the way. I make no warranty for my opinion.

  5. #5
    Join Date
    Apr 2010
    Posts
    161

    Default

    Thanks Dinkum. I didn't know there was such a thing as a formal house share agreement. I think T has a very informal arrangement with his lodgers, probably not written down. I have a written AST with the tenant and it says the tenant is allowed to sublet with the landlords permission (not to be unreasonably withheld).

    I will investigate house share agreements. Is there a legal stationers such as Oyez that produces a standard one or do I have to write my own?

  6. #6
    Join Date
    Sep 2012
    Location
    Sometimes Kent, sometimes France
    Posts
    135

    Default

    I offer my advice freely, but I am not an expert, solicitor or judge. It is simply my experience of being a landlord and what I have learnt along the way. I make no warranty for my opinion.

  7. #7
    Join Date
    Jan 2011
    Posts
    3,635

    Default

    Current lodgers are resp of your T, not you.Anyone remaining after expiry of Ts NTQ would have to be evicted by you, by due process, with your T liable for costs. Your T should serve his lodgers reasonable Noticeto vacate before expiry of his NTQ. Once you have regained possession, you are now free to offer agreements to anyone who applies. Poss advisable for current lodgers to find alt overnight accom at end of T NTQ if they wish to re-apply

  8. #8
    Join Date
    May 2009
    Posts
    14,115

    Default

    Quote Originally Posted by bureaucrazy View Post
    He plans to leave end of March or End of April but has not given formal notice yet.... It's still on the original AST term (not periodic). I hope that clarifies. I'm mostly concerned about the handover if I move back in while the lodgers are there and then whether I must stay there every single day to avoid creating a tenancy.

    If I have to, I can insist that when T vacates, his lodgers go with him. Then I can move in myself, but I don't want to throw them out and then have to look for new lodgers myself.
    There is no ideal, legally clear cut way to go about this, unless the T vacates and takes the lodgers with him, and you find new lodgers.

    First, there's the issue of ending the tenancy.

    Unless there's a break clause in the contract, the T cannot give notice to end the fixed term tenancy; he can only give NTQ if the tenancy becomes periodic. Or he can vacate at fixed term expiry, but that would mean lodgers vacating, too.

    Assuming there is no break clause, then I would suggest executing a Deed of Surrender when T moves out, just to cover your back. Although the lodgers would be remaining in occupation (so that the T wouldn't be yielding up vacant possession), it's still better than nothing. (Template in this link - prepare two copies, one for you, one for the T).

    IMO it would be advisable to move in immediately the T vacates/surrenders. As I said, there is no ideal way, with the lodgers remaining in situ, but I'd say there is greater potential risk that the lodgers could succeed in arguing that they are AST tenants if you are not in occupation when the T's tenancy ends. That is because of s.3A Protection from Eviction Act 1977; this is what makes a lodger an 'excluded occupier' - excluded as in no court order required to evict.

    s.3A (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.

    You do not have to physically be in occupation every single day, and you can go on holiday or travel for work purposes, but the premises must genuinely be your only or principal home.

    You should grant the lodgers individual contracts/licences for their rooms, not a joint 'house share' agreement.

    http://www.lawpack.co.uk/landlord-an...product711.asp

    And buy this book:

    http://www.lawpack.co.uk/landlord-an...roduct1703.asp

    Its author also has an associated website:

    http://www.lodgerlandlord.co.uk/

  9. #9
    Join Date
    May 2009
    Posts
    14,115

    Default

    Quote Originally Posted by mariner View Post
    Poss advisable for current lodgers to find alt overnight accom at end of T NTQ if they wish to re-apply
    Either the lodgers genuinely vacate or they don't. There is no point in a sham arrangement whereby they pretend to move out for one night.

  10. #10
    Join Date
    Jul 2012
    Location
    North West
    Posts
    1,785

    Default

    Isn't this house now a HMO?

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