When a resident landlord isn't there

NB this page contains some general legal information which is for guidance only and is not legal advice see - Disclaimer.

Landlord stays away a lot

Provided the property remains your main home, you may still be able to maintain your resident landlord status, but please read below before you take a lodger then leave home for long periods!

If as a resident landlord, you spend a lot of time away from home, you need to be especially careful about ensuring you set up the right Agreement and that all your paperwork (id and proof of address) is in order. You also need to be particularly careful about the lodger you pick, and check them very thoroughly. In addition, it's a good idea to leave an audit trail of your whereabouts, so ensure you email your lodger, copying someone else in, such as your employer if possible, saying exactly how long you will be away and when you will be back.

It is also a good idea to get a relative or friend to visit once a month or so, letting themselves in if necessary (this is perfectly legal provided the lodger remains a licensee as opposed to a tenant - see What is a Lodger? Lodger's legal status in England and Wales).  The lodger agreement should also stipulate that the landlord or anyone that he or she appoints carries out significant and regular services at the property; most particularly, in the lodger's room.  Moreover, ensure those services are actually carried out on a regular basis. 

By services, I mean substantial services such as cleaning, changing sheets and towels and/or providing some meals.  Simply doing something that justifies regularly going into the lodger's room such as leaving mail is OK for a landlord who doesn't spend much time away, but not a landlord who stays away a lot as such a landlord may not be able to rely on residence at the property if challenged.  Service provision is another characteristic of a licence as opposed to a tenancy.  Further, it would be best if the lodger's room could be changed for another in the property (at least in theory) and the lodger did not have exclusive use of washing and cooking facilities.  If the room is lockable, the landlord and anyone acting on the landlord's behalf should hold a key to the room and they should enter the room regularly, preferably to carry out the services mentioned.

I have come across situations where live in landlords have been away long term with work, only to come back to find their lodger has taken over their home and locked them out, claiming that as the landlord has moved out, they now have a full (assured shorthold) tenancy, with exclusive rights of occupation!

Looking at the residence/domicile question for UK subjects, HMRC have introduced a statutory residence test (normally used for determining capital gains tax), and the habitual residence test has been introduced for benefits and public housing purposes. Note that these tests are guidelines and a rule for certain purposes, not a law to cover all purposes. There remains no absolute legal definition of residency at a particular address for landlord and tenant purposes.

However, it could be argued that these tests both reflect what a reasonable person would say was a sufficient test of someone’s place of residence. I believe that if a resident landlord leaves plenty of his/her possessions (including clothes) in the property, maintains their bedroom, has most mail going there, continues paying bills and council tax, remains registered with a local GP, stays on the electoral roll at that address, and last but not least, can spend at least a month of the year living back at the property (either a complete month or time amounting to a month in total), such a landlord would have a very good argument that the property remains his/her main residence and he/she therefore remains a resident landlord.

However, as far as I'm aware no such case has to date (April 2017) been proved in a UK court of law, and should such a landlord be unlucky enough to be challenged by a lodger, the court would look into the particular circumstances and make a ruling based on that.

Some cases would naturally be more clear cut than others. For example, there are many live in landlords who have jobs that take them away for weeks, even months at a time, including those who serve in the armed forces. Clearly, someone staying away because of a work commitment, or for another good reason, such as caring for a sick relative, would have a more compelling argument than someone who decided to simply travel the world for a year.

Another deciding factor will be the landlord's intentions (a crucial legal consideration). The landlord would be advised to have lived in the property as a resident landlord well before the landlord started travelling. Anyone wanting to do a Airbnb type let (unless it was only part of the property while they remained there too) would almost certainly be seen as letting the whole property. Anyone planning to let either whole or part of their home (whether they're an owner occupier or a tenant) must get written permission from their mortgage provider, freeholder or landlord first as well as checking their insurance policy.

To sum up, maintaining resident landlord status while travelling away a lot is not without at least some risk. This is why anyone contemplating this must be especially careful about whom they let to and must reference and interview very thoroughly - looking into the attitudes and lifestyles of the prospecitve lodger's partner and friends too. Unfortunately, I would also say don't even think about letting to someone under these circumstances whose housing options are very limited because they're on a low income or dependent on housing benefit as the local authority may well claim they have a tenancy and refuse to help them find alternative housing when you need your property back!

Whether a lodger is a licensee or a tenant is important because it affects landlord's right of access and lodger's notice to quit. A tenant is someone with an interest in land who has exclusive possession. A tenant whose landlord lives elsewhere will by default be an assured shorthold tenant, not simply an excluded tenant (as in someone letting an apartment in the home of a resident landlord).

This will make eviction especially difficult as the landlord will first need to satisfy the requirements of the Deregulation Act 2015 before issuing section 21 (the only kind of notice to quit that can be given to an AST tenant) which the tenant can fight, potentially dragging the case on for months in such a complicated matter as where the very nature of the agreement must be decided first. The only other route open to the landlord would be section 8, ground 1, which is again likely to take many months and the landlord would need a solicitor.

What if the landlord changes or dies?

Although it isn’t likely to happen often, it may sometimes be the case that a live in landlord moves out, to make way for another live in landlord (who could be a new owner occupier or the owner’s tenant), but the lodger remains living at the property. This is more likely to happen with HMOs which are often sold as a going concern.

Provided the lodger is given 28 days notice of the change of live in landlord, and the new landlord moves in within 6 months, the renter's status remains that of a licensee, although they have temporary tenancy rights if there is a gap between the old landlord moving out and the new one moving in, so they would become an excluded tenant until the new landlord moves in.

If a resident landlord dies, his/her estate will simply continue as “resident” landlord (as though there had been no change of landlord) until the property is disposed of. However, while the lodger is living in the property without a resident landlord, it would be advisable to assume the lodger has temporary excluded tenant status until probate is settled and a replacement resident landlord moves in. Whether a lodger is a licensee or an excluded tenant is important because it affects landlord's right of access and lodger's notice to quit.

Further information on change of resident landlord can be found in the government leaflet, Rent a room in your home.