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Question

Types of Tenancies (England)

Main residence

7 Mar 2018 | 7 comments

Prospective tenant has worked and lived in our city with his wife for many years. Wife will move to a different part of the country to live in house owned by tenant, coming to stay in our city from time to time. Tenant wants to continue to live in city in our flat, and go to the house and wife most weekends. Wife will not be on tenancy agreement.

Will our flat be tenant’s main residence, please?

In answer to a previous Q on this, you advised that, if in doubt, use an AST. Does that still apply?

Answer

7 Comments

  1. guildy

    It’s a difficult one but we think on balance from what’s described your property is certainly arguable as being the tenants principal home. However, even simply going home every weekend could be sufficient to say the weekend home is the principal home – especially if your property is just staying for work. Definitely use an AST in this case because of the doubt.

    The general rule still applies – if in doubt use an AST.

    If ever possession is required, perhaps get in touch first (and explain the above situation) as it may be advisable to serve a couple of notices to cover all possibilities but we will worry about that if only it’s needed.

    • Danny

      Thanks very much, Adrian.

      That being so, I think we will go with these people, subject to the searches which i think will be OK.

      This is the flat which has been leaked on from above. We will have to take up the floor to dry it out properly. You had suggested I wait until the place is all made good, but this applicant looks very long-term and has a very good income and owns his own property so no need for guarantor. And I have a good feeling about him. So I would like to try to get him.

      The tenant has to move out of the current rented place by 14th March and would move a bit of furniture to our flat, and the rest to the country property.

      He is planning to work temporarily from the country until he can move into our place, but he couldn’t do that permanently.

      We won’t be ready by the 14th and, as you and I have discussed before, I shouldn’t let anyone live there when the floor is being taken up.

      I’d like to try to accommodate his schedule and, if nothing else, I’d like to allow him to put the furniture in our place, at least.

      I can think of 2 (problematic) ways we might do that:

      take a reservation fee, stop marketing the flat, get caretaker to let him put furniture in but don’t hand over key, start tenancy from date he actually moves in. He runs risk that I sell his furniture and never let him in!
      start tenancy from date he puts furniture in, give him key, but have clause in management regs that he can’t live there until place made good. But is that a tenancy? I don’t have a good feeling about it.

      What are the legal implications of 1 and 2 please?

      What would you do?

  2. guildy

    Your main risk with allowing furniture beforehand is that if the tenancy doesn’t materialise for whatever reason and then the person doesn’t collect the furniture, what will you do with it! You have to take reasonable care of it and there are all sorts of problems associated.

    Our advice is simply to do a normal letting. They can only move in after the property is suitable for occupation, they have paid their deposit and first months rent and been given keys to occupy.

    • Danny

      OK Adrian, I get it.

      Thanks very much for the quick reply.

    • Danny

      Hi again Adrian

      Thinking about this, aside from the problems re the furniture itself, if I let furniture in and issued a tenancy from furniture date, with a clause that living there had to be delayed ’til place made good, would that mean it wasn’t a tenancy?

      • guildy

        That wouldn’t be ideal because there would be a tenancy but you would be refusing access (presumably an unlawful eviction)!

        • Danny

          OK Many thanks for your patience.

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