Here is a question to the blog clinic from Mark (not his real name) who is a tenant / lodger landlord
We are in a bit of mess and would love some good advice.
We are a couple who have a 12 month AST on a two bedroom flat. We stupidly decided to rent out the second room to another couple without getting permission from the landlord.
When we took on the new lodgers we did not disclose that we were renting the property, we made sure we did not lie about it, it was just not something the new lodgers asked us.
We have since told them we are renting the flat and they are now saying we have rented them ‘something that was not ours to rent’ as the flat isn’t actually ours and we haven’t got permission from our landlord.
They have accused us of committing fraud because we did not disclose we rented the property ourselves, and they assumed we owned it.
There is no written tenancy agreement and no fixed term agreed, it was done on mutual trust and a fixed rent agreed to be paid by bank transfer monthly. They do not have a lock on their door and we enter to clean the room when we clean the flat. We all share a kitchen and living room.
They have informed us they have been advised they could take us to small claims court to have all their rent refunded as they paid it under ‘false pretences’. Where do we stand legally and what is the best course of action?
That is rubbish. A tenant / licensee is not entitled to ‘look behind his landlords title’ – which means that actually it is perfectly legal for even a squatter to grant a tenancy – as between the squatter and his tenant!
Although (in the squatter situation) the tenancy is liable to be ended if the true property owner claims it back – until that happens it is valid and rent is payable.
So in your case, as between you and the lodgers, the lodger agreement is perfectly valid and legal and they are not entitled to reclaim their rent.
It is possible that your landlord may be a bit annoyed about it (it could put him in problems with his mortgage for example) but your lodgers have no right to complain.
It sounds to me as if they are trying to use this as an opportunity to get some free lodgings. Which is not very nice, so you may want to serve notice on them to leave.
You can find more about lodger landlord situations on my Lodger Landlord website.
Very interesting….
Okay, the L/L can serve notice on the tenant, and will gain possession eventually….how does that affect the lodger?
There may be possible breaches with local HMO regs too.
The lodger’s contract will be ended if his landlord is evicted. This is often described as ‘the branch falling with the tree’.
So far as the owner of the property / landlord of the lodgers landlord, is concerned (let us call him A and the lodger’s landlord B), the lodger (let us call him C) has no right to be there.
However A has no right to evict someone from his sub tenant, B’s property (even if the C is there in breach of B’s lease) – A’s right of action is against B, not directly against C.
Its all a bit complex. But the point of this post is that C is not entitled to ‘look behind’ B’s title and question his right to rent to him, C.
You are right about possible HMO problems but this is a different issue.