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Ending a Tenancy (England) | England | What to Do if Tenancy Is to Continue (England)

Tenant is currently unable to return from abroad and wants to allow friend to make use of property

4 Mar 2021 | 2 comments

My tenant is stuck in Argentina, having flown home for an extended Christmas break and is unable to return due to flight and quarantine restrictions. Her assured 6 month tenancy is ending in a fortnight and will become a periodic tenancy after that, allowing her to return when restrictions ease. In the meantime, she has asked whether a friend and her partner can occupy the flat in her absence and cover her rent. She is a good tenant and I have spoken to her friend. I am happy to consider this but what amendments to the original tenancy agreement do I need to make to allow temporary occupation by this friend and her partner?

Answer

2 Comments

  1. guildy

    It would all depend on whether the tenancy address continues to be the tenants “only or principal home”.

    From what’s described, we believe it is and the Argentina home is a second home.

    On that assumption, it would be okay to consent to guests staying at the property. They would be lodgers even if the tenant isn’t sleeping there at this moment as long as it remains the principal home.

    Rent must continue to be paid by the tenant (do not accept rent from the occupiers) and things like repair requests must be via the tenant. You would need to be very careful not to inadvertently make the lodgers tenants by doing some act implying such.

    The risks are:

    A) how long does a lodger remain a lodger before becoming a tenant? Is it 1 week, 1 month, 1 year, 10 years? There is no answer but there is likely some point when the tenant cannot say it’s the principal home and is instead sub-letting. At that point, the occupiers will become tenants and not lodgers.

    B) the court may disagree and say that at the time of the lodgers entering, it was not in fact the tenants principal home. Such a result would change everything.

    C) if the tenant gave notice but the occupiers refused to leave, it could be tricky knowing what possession procedure to use.

    All of that being said, almost the worst case is that the temporary occupiers are in fact your assured shorthold tenants albeit with no written tenancy. That would still mean you can get possession – just the longer route (but no different to getting possession against the tenant who’s in Argentina at the moment).

    We have a consent for temporary guest template. It will probably need modification for this scenario but will provide a good starting point. The occupiers should somehow be informed they are guests only and not tenants.

  2. N_I_C_K

    Many thanks for your prompt reply.

    Yes, my tenant is staying with her mother in Argentina so that would likely be deemed a second home.

    Good point about the rent continuing to be paid by the tenant and repair requests etc. coming from her.

    I’ll look at the template. Thanks again!

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