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Nicola-mod
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Category: Property Law
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I would like some advice. I am leaving the UK to work abroad

Customer Question

Hello, I would like some advice. I am leaving the UK to work abroad for a few years and have found 2 friends to rent out the 2 rooms in my flat to (I own the flat, and my primary residence will stay there). I am not sure whether I should prepare a short-hold assured tenancy agreement or whether it should be a simple lodger agreement. Could you please advise?
Submitted: 11 months ago.
Category: Property Law
Expert:  Ash replied 11 months ago.

Hello my name is ***** ***** I will help you with this.

Are they going to be staying together throughout the whole term please?

Customer: replied 11 months ago.
Not necessarily. They don't know each other.
I'm intending to keep paying council tax etc. as this is my home even though I'm posted overseas for a few years with my job. So in a way this is a lodger situation. But equally I won't have my own room here (except the sofa bed). I basically seem to fall between the two categories - lodger agreement and assured shorthold tenancy agreement. Tax implications appear to be the same once the income is over a certain minimum amount (I think), but landlord obligations and tenant rights are much stricter under an AST. I just want to check that it is OK to go down the lodger route, or whether there is some sort of legal definition I am not aware of.
Expert:  Ash replied 11 months ago.

Ok - then if they dont know each other you would produce an AST for each one.

That way you and they are are protected. You and they also know rights, obligations, responsibilities, what happens if rent is not paid and how to terminate the agreement.

But I would go down the AST route rather than lodger as you are not a live in Landlord.
Can I clarify anything for you about this today please?

Customer: replied 11 months ago.
Sorry, but I don't feel you have really understood my issues.
1) How do you know I am not a live-in landlord? what is the definition? How many days a year do I have to live there, for example? What if I am living in a hotel overseas and this is my primary residence? This is not clear to me.
2) I am not really sure two ASTs is what I need since this government website (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/496722/Model_Agreement_for_an_Assured_Shorthold_Tenancy_and_Accompanying_Guidance.pdf) says an AST is not appropriate for someone (a) Renting a room in shared premises (i.e. if the tenants are not, together, renting the whole of a house or a self-contained apartment within a block of flats) -- which is the case as they are separate but sharing my kitchen; (b) Lodger living in the landlord’s own home -- this is my own home though it's true I would be there infrequently.
Could you please help me with (i) a clear (legal) definition of the differences between a tenant and lodger situation; (ii) finding out whether 2 ASTs is actually possible if they are sharing the kitchen/living area?
Many thanks.
Expert:  Ash replied 11 months ago.

You said that you were going to work abroad for a few years - therefore I did not consider that for at least 2 years you were coming back. Unless you are living in the property, which you are not because you have said you are working abroad for a few years, you are not a live in Landlord.

Even if you are living in a hotel abroad, you are not a live in landlord.

You have a choice, either they sign an AST or they have individual agreements. If you want an individual agreement you would need a lodger agreement (sorry if I didnt make that clear earlier).

Legally the difference between a tenant and a lodger are rights

A tenant has far more rights under the Housing Act. They have a right to exclusive use, certain notice periods, if they fail to leave a Court must order possession etc.

If they are a lodger they have far less protection, in essence you are just letting them stay there on licence.

Does that clarify?

Customer: replied 11 months ago.
Thanks very much, that is much clearer. The only sentence I don't understand (which is I think the key one!) is this one:
"You have a choice, either they sign an AST or they have individual agreements. If you want an individual agreement you would need a lodger agreement (sorry if I didnt make that clear earlier)."So: since they are 2 separate individuals who will not be signing a joint contract, does that mean they should both have Lodger agreements (even though I won't qualify as a live-in landlord)? So that the rights they have are lodger rights (see https://www.gov.uk/government/publications/letting-rooms-in-your-home-a-guide-for-resident-landlords/letting-rooms-in-your-home-a-guide-for-resident-landlords) rather than tenant rights? This would suit me fine of course, I just want to check I understood correctly.
In the case of a lodger agreement, I understand this document it not obligatory and can be much more informal than an AST contract. Is that correct?
Thank you very much! I think I am almost understanding now!
Expert:  Ash replied 11 months ago.

Yes they should both have Lodger agreements even though you are not a live in landlord.

Does that clarify?

Customer: replied 11 months ago.
Almost! The problem is that when I search for Lodger agreements, they all say they are for resident landlords... which you have just said I am not.... can you help me find an official source to explain this? Thanks!
Expert:  Ash replied 11 months ago.

http://simply-docs.co.uk/ - is a great website and they should have this
Does that clarify?

Customer: replied 11 months ago.
Unfortunately not. It has something called "Licence to Occupy a Room in the Landlord’s Home", but this doesn't answer my question. Where is the government source that says if there are 2 individuals renting rooms in my house that they need a Lodger agreement, even if I don't live there?
Expert:  Ash replied 11 months ago.

It wont be a Government source as Act's are approved by Parliament.

Housing Act 1988.

Does that clarify?

Customer: replied 11 months ago.
Hello again. I am sorry to insist, but I still feel I need to go to another solicitor for an opinion at this point. What would be the legal reasons for (a) choosing a lodger agreement (as you have recommended and I think would be most convenient for me)/license to occupy (b) choosing an assured shorthold tenancy for the room only? I still am not clear which one I should opt for. THank you.
Expert:  Nicola-mod replied 11 months ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 11 months ago.
Thank you. Please just cancel the question - I think I probably need to go to a solicitor in real life unfortunately, as clearly the question must be a complicated one!

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