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Here is a question to the blog clinic from Terence who is a landlord.

I am classified as a ‘Resident Landlord’ occupying 1 of 5 flats in a Victorian house converted into 5 flats in the 90’s. I have lived there since 1982.

I understand that my tenancies therefore cannot be Assured Shorthold Tenancies or Shorthold Tenancies but are classified as Non-excluded Tenancies. I understand that I, therefore, do not need to, in fact, cannot use Tenancy Deposit Protection (TDP) schemes because in law they only apply to Assured Shorthold Tenancies or Shorthold Tenancies. Is this correct, please?

Also what issues do I need to know about and/or steps I need to take to protect myself should any of my future tenants dispute this.

Answer

You are quite right.

The tenancy deposit schemes only apply to assured shorthold tenancies. The authority for this is found in the Housing Act 2004. Section 213 says:

Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

The definition of ‘shorthold tenancy’ is found in section 212 (8) which says

“shorthold tenancy” means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of the Housing Act 1988 (c. 50);

So how do we know that a property rented out in the same building where the landlord lives is not an assured or an assured shorthold tenancy?

For this, we need to look at the Housing Act 1988, the act which set up assured and assured shorthold tenancies.

Schedule 1 lists the tenancies which cannot be assured tenancies (when the act refers to assured tenancies this includes assured shorthold tenancies). Section 10 of the schedule deals with resident landlords.

This basically says that at the time the tenancy was granted, the landlord must have occupied another property in the building which was occupied as the landlords ‘only or principal home’. And that throughout the tenancy there has been a resident landlord.

If any of your future tenants dispute this, then just refer them to the legislation.

Note that if you move out, then you will lose your resident landlord status and will need to protect the tenancy deposit. However temporary absences will not count.



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