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Question

Types of Tenancies (England)

Live in Landlord or separate property?

30 Jan 2017 | 5 comments

Hi – If a home owner has split her house where she lives downstairs, and upstairs has been developed for a tenant where the tenant has separate bedroom, separate lounge/diner but they both share a bathroom can a standard AST be used, and therefore standard form 6a if needing to give section 21?

Answer

5 Comments

  1. guildy

    Section 3A Protection from Eviction Act 1977 provides that where a landlord shares accommodation with the tenant (storage, staircase, passage, corridor or other means of access is not accommodation) then the tenancy or licence is excluded and is simply a lodger.

    Given the list of exclusions from accommodation it would seem a bathroom is sufficient to be regarded as accommodation (also see the link later).

    Therefore, the tenant is simply entitled to reasonable notice although if there is a written agreement, the notice period in the agreement will need to be followed.

    If you are wanting an agreement for a lodger, one is available here.

    Please see here for more information on the gov.uk website.

    • Openhouse

      Thank you as usual. If they signed a standard AST can they comply with the usual 2 months notice?

      • guildy

        It wouldn’t be a section 21 that would be served but yes, if the terms of the agreement say landlord will give 2 months notice then that’s what would be needed. Just a letter giving the notice will be fine and check the terms of the agreement as they may require the notice to expire the day before the rent is due after two months.

        • Openhouse

          Hi Guildy, Thank you for your response. Just so I can be clear.. the tenant has signed a AST in October 2016, so usually I would give a section 21. But as the landlord lives downstairs in own accommodation, but share a bathroom, it can just be a notice to quit? Should I issue both to be on the safe side, as I think the tenant won’t leave. Sorry, I think I have made an error by issuing a AST. Thanks in advance.

  2. guildy

    Yes, the error was granting the AST.

    A section 21 isn’t really suitable because it states that a court order is required after it’s expiry but that’s not true with a lodger agreement (although you can voluntarily obtain a possession order and if you were going to get an order, you could then use a section 21 if you prefer).

    We have a suitable template which I have just made a little update to, to make it clear for the occupier that a court order isn’t required. Hopefully they will read the Gov.UK link and leave without fuss.

    That template says one month but you may need to give two months depending on the terms of the AST.

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