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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Live-in landlord and lodger issue

Customer Question

Hi, I was a live-in landlord and my lodger signed an assured short hold tenancy agreement. The said lodger was responsible for damage,for which I have receipts and deducted said amounts from the deposit. He is now saying he is taking me to court because I should have put it in a government DPS. However, I didnt know the difference between any of these agreements and was told that as a live in landlord, whoever else stays with you automatically has the rights of a lodger and cant take me to court over this matter. Can you please clarify as I am currently very confused and need to get a solicitor otherwise.

Submitted: 2 years ago.
Category: Property Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.
Alex Watts : Is the tenant still with you please? Why did you give him an AST rather than lodger agreement?
JACUSTOMER-o774q0mr- :

The tenant has left and I didn't know the difference between the agreements to be honest and I was told if you are a live-in landlord its fine as automatically a tenants status is that of a lodger. I have returned the deposit less costs and have receipts.

Alex Watts : Have you returned the deposit please?
JACUSTOMER-o774q0mr- :

yes

JACUSTOMER-o774q0mr- :

less cost

JACUSTOMER-o774q0mr- :

problem is no DPS as I was told as a live-in landlord its not required

Alex Watts :

If you are live in then he is just a lodger, not a formal tenant and you do not need to protect the deposit.

Alex Watts :

That means if he takes you to Court he will lose.

JACUSTOMER-o774q0mr- :

but he signed an AST...

Alex Watts :

But even assuming that he has an AST tenant and you did not protect the deposit, if you refunded it and the agreement ended case law says that he can NOT claim anything

Alex Watts :

So either way he can not claim.

Alex Watts :

Can I clarify anything about this for you today please?

JACUSTOMER-o774q0mr- :

It was refunded minus costs... So im assuming he wants the money for the costs back, and then wants more money because he is stating it should be in a DPS. So he is stating that he actually hasn't received it

Alex Watts :

Minus what costs?

JACUSTOMER-o774q0mr- :

The costs have receipts to back them and no money was taken just for the sake of it. just the money regarding the damages and not a penny more.

Alex Watts :

Can you prove damages?

JACUSTOMER-o774q0mr- :

Yes, photo evidence, and he agreed that it was his fault on the phone

Alex Watts :

Ok - it makes no difference what he signed, he does NOT have an AST, he can not have.

Alex Watts :

So it makes no difference if he tries to take you to Court for non protection.

JACUSTOMER-o774q0mr- :

He signed an AST though... i have checked the contract

Alex Watts :

It makes no difference.

Alex Watts :

It is ONLY an AST if he has exclusive access to the property. He does not, you lived there

Alex Watts :

Therefore it can NEVER be an AST

JACUSTOMER-o774q0mr- :

Can you provide case law evidence for this and somewhere i can refer to material on this?

JACUSTOMER-o774q0mr- :

I have had mixed responses all morning, and its clear this is a grey area

Alex Watts :

Let me have a look

Alex Watts :

Gladehurst Properties Ltd v Hashemi (on behalf of himself and Matthew Johnson) [2011] EWCA Civ 604,

Alex Watts :

Does that help?

JACUSTOMER-o774q0mr- :

it does but it doesnt have any reference to live-in landlords?

JACUSTOMER-o774q0mr- :

Thats the bit that seems to be confusing, as a live-in landlord i gave my lodger an AST contract, and now he says his AST status supercedes that of a lodger and I as a live-in landlord i have reduced rights.

Alex Watts :

But there is NO AST

Alex Watts :

It can NOT be

Alex Watts :

You do not need to protect the deposit

Alex Watts :

And if you did if the tenancy has ended then you are under no obligation to now protect

JACUSTOMER-o774q0mr- :

ok, so the crux of what i am trying to find out is - where is it stated what the definition of an AST is? and if there is a caveat to an AST not being an AST due to no private access etc

Alex Watts :

But it can NOT be an AST if you live there - you own the house, the tenant is just a lodger.

JACUSTOMER-o774q0mr- :

ok

JACUSTOMER-o774q0mr- :

simple as that?

Alex Watts :

Yes.

Alex Watts :

Otherwise they are a lodger!

Alex Watts :

They need to have EXCLUSIVE access to the whole property to be an AST

JACUSTOMER-o774q0mr- :

(sorry if im being pedantic, just dotting the i's and crossing the t's)

Alex Watts :

Can I help further about this?

JACUSTOMER-o774q0mr- :

No, thank you

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

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Alex Watts :

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