Any Legal types care to comment - Getting rid of tennant

Surfer said:
Whats the difference between a tenant and a lodger? Bit of info.. i own a property that i live at and occasionally let out a room to a lodger. I usually just draw up a lodging agreement (not a tenancy lease agreement)
Is the situation with the uhh deposits the same? :)
thanks
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Sorry, that meant to be Exclusive Possession, not Absolute Possession.

Anyway, as I said, you can call it a Lodging, Lease, Mickey Mouse what all the court cares, if the Person living in the property has :

1 - Certainty of duration
2 - Fixed term
3 - Exclusive possession

Then he has a lease, regardless what you call it in your contract, you can put it in big fonts, bold, in capitals that he only has a licence, but if he has those 3 elements, he has a lease.

In regards to a lodger, clearly he only rents a room, therefore he does not have exclusive possession of the property, thus the rights given by the Landlord and Tenant Act 1925 and 2002 amended is severely limited.

btw, I am not an expert in land law, it's just off the top of my head of what i remember.
 
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In regards to a lodger, clearly he only rents a room, therefore he does not have exclusive possession of the property, thus the rights given by the Landlord and Tenant Act 1925 and 2002 amended is severely limited.
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cheers, thats what i thought, just double-checking :)
 
Thanks for your replies guys - much appreciated

I guess the best solution is to just stick it out - it was more, I suppose a case of what are my options if things get really out of hand (am stressed enough at work without having to deal with stuff at home).

FWIW the girls I live with are dancers and do go away (though it is excluded in the standard contract we've signed) the landlord is well aware that they get people in to cover the rent for a few months. Myself and one of the girls are on the contract - the auzzie girl isn't.

Raymond Lin said:
Sorry, that meant to be Exclusive Possession, not Absolute Possession.

Anyway, as I said, you can call it a Lodging, Lease, Mickey Mouse what all the court cares, if the Person living in the property has :

1 - Certainty of duration
2 - Fixed term
3 - Exclusive possession
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OK I'm a complete layperson when it comes to the Law so would you mind expanding on how that fits into this situation - i.e. she does have a moving out date (though not on paper), has been here for less than a year and it is a shared flat so I'm not sure how any "exclusive possession" can come into play?
 
dowie said:
OK I'm a complete layperson when it comes to the Law so would you mind expanding on how that fits into this situation - i.e. she does have a moving out date (though not on paper), has been here for less than a year and it is a shared flat so I'm not sure how any "exclusive possession" can come into play?
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First, i made another slight mistake lol, it has been a while !

Anyway...the 3 elements are...

1 - Certainty of duration
2 - Correct Formalities
3 - Exclusive possession

The contract (albeit oral, still binding) is for a fixed term as you have a moving out date. That's certainty of duration.

The exclusive possession is the key and where most of the caselaw and litigation have come from, since you are not a live in landlord I guess the tenants as a whole have exclusive possession of the property where you need to give them reasonable notice before you can enter the property, basically you can't just turn up at the front door and demand to be let in.

Looking into Street v Mountford 1985, before Street v Mountford, the court was looking into the intention of the parties, where in Street v Mountford the court looks into the reality rather than the intention. In particular look into Lord Templeman's judgment.

http://www.swarb.co.uk/c/hl/1985street_mountford.html

Lord Templeman said that:

"In the case of residential accommodation there is no difficulty in deciding whether the grant confers exclusive possession. An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own. ... If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy ..."
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HOWEVER, whereby premises are occupied jointly, it comes down to how the people are view as a whole and whether they are joint tenants or tenants in common. If they are hold in a single agreement it'll suggest its a lease, where its separate agreement it suggest a licence. For example if its different contracts, signed at different times then it's considered its licence, which in your case it appears to be.

So, in my opinion, she doesn't have exclusive possession, no lease....give her a short notice and get her out. AG Securities v. Vaughan [1990] is your friend.

Don't you love the law? :D

EDIT - HOWEVER, under the Eviction Act 1977, you may be required to give notice in writing and 4 weeks for the eviction to take effect.
 
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Just for your info, she does have the correct formalities.

Under S.52 of the LPA, general rule is that, all legal interest in land must be way of deeds

However S.54 (2) provide an exception,

1 - takes place in possession (take effect straight away)
2 - not in the future
3 - for a period that does not exceed 3 years
4 - at the best rent that can be obtained (market rate)
5 - without taking a lump sum

Then it can be granted orally or merely in writing.
 
If she hasn't signed anything then change the locks, kick her out and don't bother giving her any money back. She'll just spend it on blow.
 
Raymond Lin said:
So, in my opinion, she doesn't have exclusive possession, no lease....give her a short notice and get her out. AG Securities v. Vaughan [1990] is your friend.

Don't you love the law? :D
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Cheers dude - you are a star - she is going to be leaving in 4 weeks anyway and hopefully we won't have any more incidents - but I guess if we do then we could feasibly say to her - listen this isn't on can you please find a hostel to go and stay in at the weekend and we'll reimburse you with any rent owed.
 
dowie said:
Cheers dude - you are a star - she is going to be leaving in 4 weeks anyway and hopefully we won't have any more incidents - but I guess if we do then we could feasibly say to her - listen this isn't on can you please find a hostel to go and stay in at the weekend and we'll reimburse you with any rent owed.
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HOWEVER, under the Eviction Act 1977, you may be required to give notice in writing and 4 weeks for the eviction to take effect !
 
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