When is a dwelling a rent-a-room or self-contained unit for RTB purposes?

J

John Lingua

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Hi,
I have a lodger in my family's house as part of rent-a-room scheme. The lodger has its own part of the house, with a separate entrance. All the utilities like gas, electricity, internet, bins are shared. The dwelling has separate shower and toilet, and cooking facilities. However it's not a totally separate area. There is a door (usually locked) between the dwelling and my family's part of the house. From a lodger perspective however, it's closer to a self-contained unit than to a room where you share cooking/toilets etc with the owner. The rent I charge is closer to room rate than self-contained unit rental rates.
This scenario is seen as rent-a-room by Revenue, so issues there.
My concern is that the dwelling could be treated as a self contained unit by the RTB, which I really want to avoid for a number of reasons. I've never had any trouble with a lodger, but I want to protect myself from:
- House insurance: I'm allowed to class lodgers as guests under my Home Insurance. If RTB applies to me, I'm a landlord with a tenant and I would need a different more expensive insurance.
- I always treat lodgers very well, the rent is very low relative to the market, but I don't want to be open to a lodger having all in the RTB tenant rights in my family home.
- I want to avoid all the admin that comes with RTB.
- Potential planning permission needed for change of use needed if dwelling seen as self-contained unit

Also, if I were to have a rogue lodger who reported an unregistered tenancy, and RTB saw my dwelling as a self-contained unit, I could be liable to fines etc as per link below, and als
https://rtb.ie/compliance/report-a-landlord/report-an-unregistered-tenancy/

How should I best protect myself from the dwelling being consider a self-contained unit and RTB-applicable? I can't find any clear definition of self-contained unit in the legislation. I'm open to making some part of the house sharing if it makes the the dwelling rent-a-room. I could leave the door unlocked sometimes and allow lodger access to the main for. The front of the dwelling has a large storage which I could look to have access to (i.e. sharing). I'm open to any ideas that will make the dwelling be not considered a self-contained unit by RTB.
Also, is it important how I advertise the property? Do I have to advertise it as a room as opposed to a studio?
Usually I write an email agreement with lodger? Anything I should specify here to ensure that the lodger knows he's a lodger and not tenant from the outset?

PS: I'm aware than I can be RTB applicable but can elect to opt out of 'Part 4' provisions only, but only if agreed in writing before the tenancy commences: https://www.irishstatutebook.ie/eli/2004/act/27/section/25/enacted/en/html#sec25
However I just want to avoid RTB altogether.
Thanks,
Lingua
 
John Lingua said:
If I open the door between dwellings, there's no division!
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But you said the door is usually locked. Also, if it was as clear as that, you would not be posting about the status of the lodger. You have said, they are effectively in a self-contained area.
 
Eblanoid said:
"the licensee does not have exclusive use of the property, in other words the owner can continue to access it."
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That's really useful Eblanoid. Thanks a lot for the post. I can now leave something of mine like a bike at the front of the dwelling in the large storage and claim continuous access to it. I can make that clear in the email agreement I make with the lodger, and refer to the lodger as a licensee.
Having searched online and including the legislation, it's very hard to find a good definition of self-contained unit in rent-a-room context E.g. it must have its own toilet/shower/kitchen etc. That line I've quoted above is as good as I've found in something official like RTB or legislation websites.
 
Luternau said:
But you said the door is usually locked.
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Luternau said:
But you said the door is usually locked. Also, if it was as clear as that, you would not be posting about the status of the lodger. You have said, they are effectively in a self-contained area.
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The door part was in reference to your planning permission question.
You're right. It could be seen at the moment as a self-contained unit. I want to ensure that isn't the case so will look to introduce a "sharing" aspect such that the "licensee does not have exclusive use of the property"
 
https://www.citizensinformation.ie/...ion/planning-permission-for-altering-a-house/
You have a paying long-term guest/licensee in what remains a single dwelling with an owner occupier. I don't see a material change of use?
Unless you brick up the connecting doorway it'll be hard for someone to prove it's two dwellings. Even if the original building has been extended for extra room, such extensions can be PP exempt up to certain limits.
 
To avoid any doubt just leave the door unlocked and say something to the lodger that they will have no need to come into your part of the house. And as you have said leave items in the shared area in their part of the house that you need to go in and out for.
 
All the suggestions seem to me to be solely to create a situation where a self-contained unit is not a self contained unit? Whom would want to have a self-contained unit with an open door to rest of the property, or with property from the rest of the occupants stored in part of the area of or outside, the self-contained area so they (the occupants of the self-contained unit) cannot benefit from full tenancy protection?

What has been converted (garage?) or built by previous owner ? Was there a planning restriction that stipulated it could not be let out, save as part of the full house (which means it can only be let if the whole house is let too). That is a normal planning condition attached to granny flats or garage conversions for same.
 
@Luternau Can you reference a definition of "self contained unit" in Irish planning law (as opposed to Tenancy legislation or Rent-a-Room rules)?
 
Eblanoid said:
a definition of "self contained unit" in Irish planning law
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I already did in my post above, ie. A granny flat. You are free to search that term.
And, surprise surprise, I am also aware of a granny flat that has the restriction on letting, as outlined in the same post.
 
According to Irish Revenue, it does not matter whether the area is self-contained or not to qualify for the rent-a -room scheme.
Please refer to revenue.ie under the" rent a room relief " section, point 3 " what type of residence qualifies..

"the rented room can be a self-contained unit within the house ,such as a basement flat or a converted garage"

This is repeated in citizeninformation.ie which has a lot of detailed info on the rentaroom scheme

I dont find anywhere - though I've seen in stated on various websites- that the area must be " shared" between landlord and occupant.

As far as I'm concerned if there is any dispute with whatever bureaucratic authority RTB,HAP etc- says you must share that accommodation I would quote Revenue's advice and that of Citizen Information, and ask them what is the legal basis for the claim that the property must be shared.
As long as you stick to the maximum (tax free) rent, including utilities- and declare it on your annual tax return, then you should be O.K. -and no nonsense about leaving the door open to the occupants area.
 
For what it's worth...

Rent-a-Room Relief

This page overviews rent a room relief.
www.revenue.ie www.revenue.ie
4.2 Self-contained unit

It is not possible to let an entire residence and claim rent-a-room relief, because the room or rooms that are let must form part of the residence and the residence must be occupied by the individual receiving the rent as their sole or main residence. The room or rooms can comprise a self-contained unit within the residence such as a basement flat or a converted garage attached to the residence. However, a self-contained unit that is adjacent to the residence but not attached to it cannot qualify for the relief.
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@Palatine the whole point of this thread is that Planning laws (ABP), residential tenancy laws (RTB) and tax laws (Revenue) are at variance with each other about what constitutes "self contained" and/or a "dwelling". You could be in compliance with 2 out of 3 and still be in trouble.

Even what Revenue says about "self-contained" for Rent-a-Room could be interpreted as being in conflict with what Revenue says about "dwelling" for LPT purposes. See "3.2.1 Meaning of ‘dwelling’" in Tax and Duty Manual Local property tax: Part 01-01.
 
@Eblanoid.. yes, I know there are- as in many aspects of Irish property/renting laws and quasi-legal regulations - contradictions.

My advice to OP remains that the websites from the government e.g.Revenue.ie and citizensadvice.ie are very clear that a "selfcontained unit" is fine for rentaroom schemes -and for clarity Revenue states " such as a basement flat or converted garage.

I can't imagine how anyone who complied with Revenues rules on selfcontained apts/rentaroom " could still be in trouble"
 
Palatine said:
I can't imagine how anyone who complied with Revenues rules on selfcontained apts/rentaroom " could still be in trouble"
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@Palatine; @Eblanoid The OP's question was about the RTB, not Revenue. They actually stated :
John Lingua said:
This scenario is seen as rent-a-room by Revenue, so issues there.
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This is the question they posted

John Lingua said:
My concern is that the dwelling could be treated as a self contained unit by the RTB, which I really want to avoid for a number of reasons.
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Whether it's a Revenue or RTB matter, the issue of whether they are permitted to rent out the self-contained unit under the terms of the any granted planning permission, is also very relevant/important.
 
The OP’s question is whether the letting that he describes is, or could be seen as, a tenancy that is registrable with the RTB under the Residential Tenancies Act.

The question of how, or whether, the rent he receives is taxable is irrelevant — the application of the Residential Tenancies Act doesn’t depend on whether the landlord is taxable on the rent received. So the fact that the arrangement comes within the rent-a-room scheme doesn’t mean that it isn’t registrable with the RTB.

Similarly, the question of whether the partition of the house, or the letting of part of it, was or was not done in compliance with the Planning and Development Acts is irrelevant. The application of the Residential Tenancies Act doesn’t depend on that either.

Section 3 of the Residential Tenancies Act says:

(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy . . .

(2) Subject to section 4(2), this Act does not apply to any of the following dwellings . . .

(g) a dwelling within which the landlord also resides . . .
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So, we’ve got two questions here.

First, is the space let by the OP a separate “dwelling” from the space in whjch the OP resides?

Secondly, if it is, is the letting a “tenancy”?

is it a “dwelling”?

“Dwelling” is defined in the Act as:

. . . a property let for rent or valuable consideration as a self-contained residential unit . . .
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And, although there’s no comprehensive definition of “self-contained”, the Act also says:

“self-contained residential unit” includes the form of accommodation commonly known as “bedsit” accommodation
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(Note that this isn’t an exhaustive definition; “self-contained residential unit” isn't limited to bedsits. This serves to expand the ordinary meaning; you might argue that a bedsit isn’t a self-contained residential unity because you have to go down the hall to a shared bathroom; you don’t have your own bath or toilet. This provision is included to rule out that argument, and to provide that a bedsit is taken to be self-contained unit, and therefore covered by the Act, even though it doesn’t actually contain some essential facilities.)

So, is the space described by the OP “self-contained”? I have to say that it looks it to me. it has everything necessary for residential accommodation — living space, kitchen facilities, bathing and toilet facilities. It has a clear boundary, marked by walls. It even has its own front door. I don’t think it ceases to be self-contained because there’s a connecting door between it and an adjacent residential space, even if that door is unlocked. Every property has boundaries, and every boundary has entry and exit points in it — doors, gates, whatever — that doesn’t mean that the property isn’t “self-contained”.

So, yeah, I t hink this is a dwelling, and it's a separate dwelling from the one in which the landlord resides. So, if it's the subject of a tenancy, the Act will apply to it.

Is there a tenancy?

OP doesn’t say what the terms of his agreement with the lodger are. He doesn’t even say if the agreement is in writing or not. To compound matters, the Residential Tenancies Act doesn’t have a comprehensive definition of “tenancy” (though it does say that a tenancy may be periodic or for a fixed term; may be oral or written or implied from conduct; and may include a sub-tenancy). All this makes it hard to say whether what the OP has is a tenancy.

However as others have said, in general the key feature of a tenancy that distinguishes it from a licence to use property is that a tenancy grants exclusive possession; the tenant is entitled to the sole occupation of the property;; he has the right to keep others out (or to permit them to enter); and even the landlord needs permission to enter.

OP does mention that “the front of the dwelling has a large storage which I could look to have access to (i.e. sharing).” If this is outside the front door of the property, in the garden, I don’t think the OP have access to , and use of, that would be inconsistent with the arrangement being a tenancy. But if it’s inside the accommodation and the deal involves OP having his own key and letting himself in whenever he wants to access and use the storage facility then, yeah, that might help. But this is always a holistic assessement; looking at the arrangement as a whole, does it seem that the tenant has effective exclusive occupation of the residential unit? If he does, then it’s likely to be viewed as a tenancy.
 
There’s this also. If a tenancy needs to be registered for a split property, the landlord can opt out of Part4 security rules.

Part 4
Non application of part

25.—(1) This Part does not apply to a tenancy of a dwelling where the conditions specified in subsection (2) are satisfied if the landlord of the dwelling opts, in accordance with subsection (3), for this Part not to apply to it.

(2) Those conditions are—
(a) the dwelling concerned is one of 2 dwellings within a building,
(b) that building, as originally constructed, comprised a single dwelling, and
(c) the landlord resides in the other dwelling.

(3) A landlord’s opting as mentioned in subsection (1) shall be signified in writing in a notice served by him or her on the tenant before the commencement of the tenancy.


Don’t understand how this works in practice. Does it mean all rules about registering, rent reviews, standards, disputes etc are the same but just that notice periods don’t apply?
 
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