Lodger or tenant?

Reply to the comment left by Jonathan Willis at 04/07/2024 - 20:45
Evening
Thank you for your response
My only and main house is this address so nothing as ever been removed to this address:my electoral registration, council tax, HMRC everything is at this address
Also knowing the chance that the judge can decide that they are not lodger I have my S8 (for no payment of rent )and S21 ready to ne serve

Reply to the comment left by Flore-anne Nevry at 04/07/2024 - 21:24
How long were you away from the property, how often did you come back?

With a s21/s8 notice you'll have to give 2 weeks for rent arrears or 2 months for s21. For an s8 ground 8, if they pay the rent by the court date it stop the court action, and you can't use ground 11 for late rent, as you don't have a tenancy agreement. That's why s21 is often preferred but obviously easy to get it wrong and invalidate it, such as no gas saftey check. Getting a court date for a possession order is often 4+ months.

Reply to the comment left by Jonathan Willis at 04/07/2024 - 21:31
The times I were away varied ;1st year I came in December and then August and that was the same thing in all consecutive years
Last year i was here in January for 3 weeks,then August for a month,then muf September until February 2024,I came back in April to May and then mid to the end of June
My first years away I could not come as often because the work would not allow as it is in Africa.
Also should I wait for the court decision on the 21.08 to know if they are lodger or not to the judge standard or can I serve the S8 and S21 now so I am ahead in the case ?
Also does the law not say that tenants can become lodgers and vice versa?if yes me coming back permanently does it not make them lodgers for sure?

Reply to the comment left by Flore-anne Nevry at 04/07/2024 - 22:52
Lodgers can become tenants, but tenants cannot become lodgers. It's a one way conversion.

The fact you were only in the property for 2 months a year, could potentially work in the lodger/tenants favour, since you aren't living their for the majority of the time. So they could have become tenants in year 1, then even if you move back in permanently for 3 years, they'll still be tenants.

Reply to the comment left by Jonathan Willis at 04/07/2024 - 23:00
I wouldn't serve an s8/s21 notice before a court decision, they are only used for an AST, it would only add more weight to the argument they are tenants.

I'm not even sure if you can evict using an s21, from what I'm reading it is not super clear if you need a written tenancy agreement , to issue an s21. Just read up the legislation on it, Section 21 seems to imply it's for use after a fixed term, and without an agreement their might be a fixed term.

https://www.legislation.gov.uk/ukpga/1988/50/section/21

If you do go down the route anyway, you can use this tool to check it's valid

https://england.shelter.org.uk/professional_resources/legal/possession_and_eviction/section_21_validity_checker

You should be aware of "Byrne v Hardwood-Delgado" case, where an s21 isn't possible, if there was no gas safety check undertaken before the tenancy started. Did you get gas safety checks done before, and every year since?

Reply to the comment left by Jonathan Willis at 04/07/2024 - 23:12
Yes I have everything in place gas safety,EPC ....

Given where things stand, waiting for the court decision in August probably makes sense; as others have said, issuing a S8/S21 would potentially assist the case of those dwelling in your house.

However, having appropriately experienced legal guidance is almost definitely your best approach for tipping the balance in your favour.

As a potential way to keep the costs of this down, it is worth checking to see if you have legal assistance as part of your home insurance.

Mark Dawson AST ASSIST

Reply to the comment left by Flore-anne Nevry at 04/07/2024 - 22:52
From what youve said above, I dont think you have lived in the property enough to claim that you are a resident landlord. I would suggest you get some legal advice from a specialist solicitor.