Lodger vs Tenant – I would like to know the difference in protection to ones’ property if one is letting out to someone as a lodger versus a tenant. As a landlord do I receive the same level of protection to my primary home if I let out the basement to someone as a lodger versus as a tenant?
Your question says it all – it highlights the common misunderstanding that you have a choice as to how you let your property, merely by heading your agreement “Lodger Agreement” or “Tenancy”.
This is not the case. It’s the situation that counts. So, if someone occupies a building or part of a building, is paying rent, and has “exclusive possession” of this part, then a tenancy is created – the tenant has a legal interest in the land (and the building on it) plus all the protection the law provides a tenant.
A tenancy exists when a rent payer occupies a house or flat and by default this will be an Assured Shorthold Tenancy (AST), regardless of what the tenancy agreement says, or indeed, even when there is no written agreement.
Likewise, a Lodger situation exists when a rent payer (lodger) shares a house with the owner (landlord), i.e., sharing washing and cooking faculties and where the landlord has access to their room, for example, to clean it. Any house owner can take in up to two lodgers.
However, there is also a third scenario; a half way house between Lodger and Tenant. This is sometimes known as an “Occupier with Basic Protection” or a “Tenant with Restricted Rights” which in reality is a Common Law tenancy. This situation exists where the landlord lives in the same building as the tenant (except a purpose built block of flats) but does not share facilities – the tenant has self-contained accommodation.
Whereas a tenant has the full protection of the Housing Acts, a Common Law tenant has limited rights, but cannot be removed without a court order (forfeiture).
A Lodger, who is a licensee (akin to a stay in an hotel) has few rights – he can be asked to leave at any time, though a reasonable period of notice would be expected.
In the case of a basement letting, with the landlord above, it is likely to be a self-contained flat, therefore, a Common Law tenancy.
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