If a tenant takes in a lodger, can the lodger request to become a co-tenant?

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patfert1

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Spin-off from https://www.askaboutmoney.com/threa...ent-paying-friends.244633/page-2#post-2014279

I wanted to understand this scenario.
  1. I am the landlord.
  2. John is my sole-tenant.
  3. John takes in Mary as a lodger. I know nothing about Mary.
  4. After some time, Mary makes a request to be added as a tenant.
  5. Can I reasonably refuse? Or, can I be "forced" in effect to accept Mary as a tenant?
  6. (and perhaps later, John moves out, and I am left with Mary as tenant)
We have talked in other threads about the scenario of a multiple-person tenancy where Tenant A is replaced by new Tenant Z. But this scenario is different, it's an additional person rather than a replacement.

ChatGPT's opinion:

I looked specifically at the question "Could B, having been taken in as A's lodger, ultimately force the landlord to accept B as a tenant?"

The answer is: there is a real statutory mechanism that potentially allows B to do this, and it is stronger than I initially suggested.

The crucial point​

Section 50(7) of the Residential Tenancies Act 2004 provides that a person who is lawfully occupying the dwelling as a licensee of the tenant during a Part 4 tenancy may ask the landlord to allow them to become a tenant.

Section 50(8) then says:

the landlord "may not unreasonably refuse" the request.

And this isn't merely theoretical: section 76(4) expressly allows the licensee to bring a dispute to the RTB alleging that the landlord unreasonably refused the request.

The Oireachtas's own explanatory material is particularly clear about the intended situation: it describes a tenant taking in a licensee who contributes towards the rent, with the tenant remaining responsible to the landlord. It then specifically says that during a Part 4 tenancy the licensee may request to become a tenant and that the landlord may not unreasonably refuse.

Applied exactly to your hypothetical​

You have:

You (landlord)
↓
A (your tenant)
↓
B (A's lodger/licensee)

A continues living there. B pays A.

If B is genuinely a licensee of A, rather than merely an unauthorised occupant, then B appears to fall squarely within section 50(7).

So B could potentially say:

"I am lawfully occupying the dwelling as A's licensee. I request that you allow me to become a tenant."

You could refuse — but your refusal would have to be reasonable.

If B believed your refusal was unreasonable, B could take the matter to the RTB.
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patfert1 said:
Can I reasonably refuse? Or, can I be "forced" in effect to accept Mary as a tenant?
Click to expand...
I think you can be forced to accept Mary as a tenant unless you have a very good reason to refuse to do so. Yet another trap for landlords.

From the other thread, if the landlord's son is the tenant but is paying no rent, I don't think this rule applies - it only applies to tenants adding lodgers during a Part 4 tenancy. If you let to a child for no rent, it is outside ambit of the Act and not a Part 4 tenancy. You can tell your son to leave at any time.
 
DannyBoyD said:
John did not get permission from you to take in a lodger.
Click to expand...
I agree with that, you are correct, but I think the practical problem may be a scenario like this:

1. You put a clause in the lease saying no lodgers or guests under any circumstances

2. John never tells you about Mary

3. Mary suddenly appears demanding a tenancy

4. You say no and Mary takes you to the RTB. You take John to the RTB for breach of the lease.

5. Mary and John lie their heads off at the Tribunal hearing. You inspected the property twice (which you did factually) and you met Mary who informed you of her status. You told Mary she was a welcome addition to the property. All of these things never happened but John and Mary swear blind that they did.

6. The Tribunal now deems that you waived the clause banning licencees and that were well aware of Mary's presence in the house as a lodger. The Tribunal barring bullet proof evidence to the contrary will always side with the tenant.

7. You now have to compensate Mary and John and grant Mary a tenancy.

8. Worse case scenario, Mary turns out to be an anti-social lunatic, John skips it and you are stuck with her as your tenant.

Your analysis is correct if you have banned lodgers in the lease and are unaware of Mary. But you're a landlord and cannot rely on the RTB to believe you or give you a fair hearing.
 
I've just posted at length on the other
main thread, so briefly here.

The s.50(7)/(8) mechanism is real, and Greenbook is right that it's a trap.

DannyBoyD's "breach of lease" only works if the lease actually says so. s.16(n) requires a tenant to notify the landlord of who is living there - nothing more. Consent is needed to assign or sublet, and a lodger is neither: he's the tenant's licensee. Sales Campelo v Brennan (TR0218-002857) and TR0001287 both held a resident tenant who took in paying occupants and merely told the landlord had breached nothing. So a lease that only prohibits subletting doesn't touch Mary. If you want to keep her out, the clause has to say "no occupier other than the named tenants without the landlord's prior written consent", with a headcount.

On Greenbook's son point: agreed, s.3(2)(h) puts the whole dwelling outside the Act - but see the other thread for what happens the day the son moves out.
 
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