Question

Ending a Tenancy (England) | England | Landlord Wants Tenant to Leave (England)

Tenant who WAS on Shortold Tenancy then moved to being lodger. Not now paying rent and stating “Can’t make me leave as evictions are banned”

14 Sep 2020 | 2 comments

I got stuck abroad when lockdown hit.  I decided to rent by flat out on a short term basis while I was away to help cover mortgage costs.  I took in a tenant and wrote up a short term tenancy agreement (using a government website one as basis and changing a few parts).  It stated it would be a rolling month by month contract if agreed by both parties.  I had let tenant know that it would be a temporary affair and I was wanting flat back when I returned – let him know this mostly by text message and Facebook message unfortunately, not in formal writing.

When I planned return I let him know a date and that I was open to him becoming a lodger instead.  He agreed.  Again unfortunatly all the communication of this was by Facebook Messenger, not a formal ending of the tenancy contract by writing.  My bad mistake.

We lived ok together as landlord and lodger for the first month, but there were some incidents during that time including actions of his leading to visits by the police a number of times.   Now he is out of work and is 2 weeks late in paying rent, but he has shown no desire to look for any work at all, stating that he needs “time to heal” – he has some mental health issues.  He has given me no indication that he has plans to find work, pay any rent, or get money together to find somewhere else.  Whenever I ask gently about it, he gets upset and storms off.  He has previously vandalised workplaces of employers he feels wronged him, so I’m trying not to get him too worked up just yet.  He also mentions everytime that “evictions are banned at the moment so nothing you can do”.

So I’m now faced with living with someone very difficult, who has not paid rent and shows no desire to start paying anytime soon.

My question is specifically this..  I know that the evictions ban doesn’t apply to lodgers, but given the situation I described above, am I at risk of him actually being classed legally as still a tenant of the entire flat, i.e. still under the terms of the original tenancy agreement, as I never formally in writing have notice for it to end?  He’s only been paying lodger rates for the previous 2 months, and nothing at all for past 2 weeks, but I know rent arrears of 6 months are needed before eviction could happen if he is classed as tenant, not lodger…

Would appreciate any help!

Thanks

 

 

 

Answer

2 Comments

  1. guildy

    Firstly, we remember seeing a case which was very similar where a landlord moved back in and then claimed the occupier to be a lodger.

    This was held as not possible without it being written into the tenancy agreement and therefore the occupier remained a tenant. Unfortunately, we can’t just think of the case name nor find it at the moment. It might pop in our heads after a while!

    Note the careful wording: “without it being written into the tenancy agreement”. That would imply it is possible to have an agreement that the landlord moves in later and they become a lodger but we’re not convinced that is even possible (but we’re not 100% sure).

    This is because section 3A Protection from Eviction Act 1977 defines an “excluded licence” (basically lodger) as (our highlights):

    (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.

    Note: in order to be excluded from certain parts of the Act, the lodging must have been happening “immediately before the tenancy or licence was granted …”.

    In your case, that didn’t happen – the lodging is only happening now.

    As such, in our view they remain an assured shorthold tenant just like a tenant who rents a room in a shared house (e.g. student lettings).

    Although we’re not entirely certain, it’s our view the normal AST procedure (section 21 and/or section 8 notice) must be followed.

    Please refer back to this page for the guidance and see the possession notice wizard on the same page.

  2. garethjenkinsit

    Thanks for your reply. So would I be right in saying that ultimately it could be me that could be held to be in the wrong on this one then and if it were to come to court or legal action, could be pushed out of my own flat? I have nowhere else to live, and tenant is not paying any rent at all currently not even lodger rate let alone full flat rent. But of course under current rules that needs to have gone on for 6 months before that becomes an eviction issue.

    Presumably then my only option here is to be very careful around him to ensure if doesn’t come to any legal action, and get him to leave of his own accord? His mental health issues are getting worse, so I’m being careful around him and getting separate advice on that side of things.

    Thanks

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