By Mike Edwards
The starting point and the fundamental factors in determining whether you are dealing with a Resident Landlord (ResLan) or not is whether the building is largely as originally constructed or has been converted. Or a purpose build block of flats no matter how small. If the latter and the builder/Landlord reserves one of the units to themselves not a problem it can never be a ResLan case. Similarly if the Landlord does not use the property as their main residence then equally it will not be a Reslan case.
What is a RESLAN Tenancy?
For it to be a ResLan tenancy therefore one of two things must happen, but in either case the accommodation must be self-contained even if it is a shared communal access – such as the hallway of a converted house. The 1988 Act says quite specifically that if both Landlord and Tenant live in the same original building and it is not a block of purpose built flats, then the tenant cannot have a 1988 Act tenancy. Therefore if you have a self contained flat upstairs and one downstairs and the landlord lives upstairs and the tenant lives downstairs, the tenant can have a Common Law contractual tenancy, but not an AST because it is Resident Landlord, and that puts it in the excluded category.
Licensor and Licensee.
Next assume a simple house and the tenant has their own bedroom but shares the kitchen (even if meals are not provided). If the Landlord was not living there this would be a Hybrid AST situation like any other sharer. But if the sharer or one of them is the Landlord then this is a typical lodger agreement and only a license will be granted and the wording throughout will be Licensor and Licensee – though in construction it could look very much like a normal tenancy agreement. However that may look like overkill for what is a fairly informal arrangement compared to a full blown tenancy. If the occupier where the Landlord lives in the same building (as originally constructed though possibly converted) shares any of the essential living accommodation (bathroom, kitchen even a lounge) then that occupier does not have exclusivity over all the accommodation and is a licensee and can only be granted a licence and not a tenancy at all. For licences it is generally recommend to use weekly periodic agreements to make it easier to get rid of co-habitees who the Landlord ends up not rubbing along with. Basically if you grant the licence on an initial fixed term and payment period of a week then you are contractually bound and can have complications and longer notice periods.
If a weekly licence is granted then a simple letter stating all the necessary detail and dates and giving a week’s notice is all that is required and no Court Order is needed to evict either. If it is a Common Law tenancy (Landlord living in same property and tenant having exclusive accommodation again like the flat example above) then a normal Notice to Quit is used giving a month’s notice. As far as tenant or occupier protection and rights are concerned all occupiers who are licensees or tenants are covered by the Protection From Eviction Act 1977 (PFE) except those living with a resident landlord, where a Court Order is not needed. Hence the weekly licence.
Check PFE status.
If they do because they are a tenant then you will have acted illegally if you evicted them only with a letter giving them a week and then entered their room and put their belongings out on the street. You can do this if they are a licensee and don’t leave at the end of the week’s notice – but you cannot if their status gives them PFE protection meaning you should have given them longer notice (minimum one month) and obtained a Court Order
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