Here is a question to the blog clinic from Arthur (not his real name) who is a landlord:
I own a self contained studio flat in a block rented on a Monday to Friday basis.
The original agreement is constructed as a standard AST, with the added clause “The property is available from 8am Monday to 8pm Friday inclusive” . Correspondence between the parties show that during the weekend, the property is to be occupied by the landlord or his visitors. This date this agreement ended has passed, and the arrangement continues on a month by month basis.
My view is that, despite the signed AST, as the accommodation is shared, albeit not at the same time, this is really a lodger agreement, and that it is not necessary to protect the deposit.
Whats your view?
To find out whether a letting is an AST or not, we need to look at the definition of what a tenancy is. The leading case here is Street v. Mountford which set out the three elements:
- Exclusive occupation of property
- For a fixed or periodic term
- At a rent
Now in your case there is a term and a rent, but no exclusive occupation. As under the agreement you are entitled to use it at weekends. In my view therefore the letting cannot be an AST.
So, assuming the landlord ACTUALLY USES THE PROPERTY AT WEEKENDS you won’t need to protect the deposit.
However if the landlord never takes advantage of the clause allowing him to use the property, particularly if it is generally understood that he never will, then if this went to a court they may hold that the letting was in reality a tenancy. In which case you WOULD need to protect the deposit.
Hmm several complications here.
First on the deposit if you are calling the agreement an AST I don’t think you help your cause even if inadvertently.
Second I think there is exclusivity. There is exclusivity every Monday to Friday for the times stated. And presumably that is the period for which the rent is paid, not the week-ends.
In effect even if there is a longer term the tenant has a series of 5 day tenancies each week, just as a tenant with a 6 months AST actually has 6 tenancies of one month each.
Interesting – but a pied a terre can never be an AST so this won’t be anyway as it is not main residence.
Well, it’s certainly not an excluded tenancy or licence, as Arthur suggests, given that it’s not Arthur’s principal or only home and he doesn’t share any accommodation with the tenant or licencee.
You (Tessa) say: “there is a term and a rent, but no exclusive occupation. As under the agreement you are entitled to use it at weekends. In my view therefore the letting cannot be an AST”.
Assuming the contract said there was a fixed term of, say six months, then I don’t think the clause “The property is available from 8am Monday to 8pm Friday inclusive” could be enforceable. Non-exclusive possession, fine, but the licencee surely needs to have access at all times throughout the term, with the landlord retaining rights of access for whatever purpose. Otherwise, it’s simply not a six month term.
So, I sort of agree with ‘Industry Observer’ (but only sort).
In effect, Arthur is arguably granting a succession of orally agreed ASTs, each one with a fixed term of five days, taking effect in possession on the Monday and ending at fixed term expiry on Friday when the tenant vacates.
Where I disagree with ‘Industry Observer’ is where he says that a six month fixed term AST is a succession of six, one month tenancies. This is utterly wrong. A six month fixed term AST is a single, six month long tenancy.