Day 1 – What is a lodger?

Tessa's 21 days of tips for Lodger Landlords - Day 1 - what is a lodger?What is a lodger? “Thats a silly question” you will probably say, “Everyone knows what a lodger is!”. Someone who lodges. Indeed the free online dictionary defines it as ‘One that lodges, especially one who rents and lives in a furnished room’. So that clear. Or is it?

As a lawyer (and I should say here that any law in this series is only relevant for England and Wales UK), when advising someone, I need to know what their legal rights and obligations are. And when this is about someone renting accommodation, this will depend on whether they have a tenancy or a license.

A tenancy. It will probably surprise many people to learn that a tenancy is a type of ownership of land. If you have a tenancy of somewhere. you legally ‘own it’ for a slice of time – for the duration of the tenancy. There are lots of qualifications to this, but essentially that is what a tenancy is – a type of ownership of land. “Land” in this context can include a flat, or a room, including a room in the landlords house or flat. Furnished or not.

If you are renting a room out for £50 per week, you won’t want your lodger to have a tenancy, with all the legal rights and obligations which go with this. You will want them to have a license.

A license. This is where someone has permission to occupy property (in this case a room) and is therefore not a trespasser. Licensees have far fewer rights than tenants.

So how can you prevent someone from getting a tenancy? And how can you best protect your position as a lodger landlord?

Prevent ‘exclusive occupation’
One of the main features of a tenancy is that the tenant has ‘exclusive occupation’ and is able to keep anyone out of the property, even the landlord. Therefore, if it is a condition of your agreement with your lodger that you have the right to come into the room from time to time, it cannot be a tenancy.

It is important that you do this. Your lodger must *not* be allowed to keep you out of the room (although you should always respect his privacy). He should not be allowed to put a lock on the door, or if he does, you must have a key. If he objects to this, tell him that it is your home and you need to be able to enter the room from time to time to check its condition.

Provide services
Another good way of preventing a tenancy from arising is to provide services (this is why you do not get a tenancy of your hotel room when you are on holiday). The most common service provided by lodger landlords is clean sheets and towels. This is good for the lodger, as he does not have to buy his own, and it is good for you as it gives you a reason to go into the room. Other services often provided by lodger landlords are room cleaning and meals, especially breakfast.

Share living accommodation
You should, if possible, share at least some living accommodation with your lodger. The reason for this is that it will mean that the letting will come into one of the exceptions in the Protection from Eviction Act 1977. This means that if you ever need to evict your lodger, you won’t have to get a court order first (this is discussed more on day 20).

However this does not have to be the whole house. If you want to have a private sitting room and the lodgers room has its own en suite bathroom, just make sure that he is allowed to use the kitchen, and the dining room if you have one. Halls and corridors don’t count.

Mind you, if you want the accommodation to be completely self contained and don’t want to provide services, there is nothing wrong with this so long as you accept that it will almost certainly be a tenancy. Indeed you may be entitled, because of this, to charge a higher rent. However it is important that you realise and understand the situation, so you will know how to deal with things if there are problems. For information about tenancies with resident landlords, you need to see my Landlord Law site.

Your own home
Finally, I should make it clear that the property must be your main home, where you live for most of the time. If you move out (permanently that is, going on holiday is all right) your lodger could obtain a tenancy.

Summary
So we now know what a lodger is. For the purposes of this series (and also this web-site), a lodger is someone who rents a room in his landlords home. He will share at least part of the rest of the house or flat with his landlord, and his landlord will generally provide at least some services (such as clean sheets).

(Note that for convenience sake, I will describe the lodger as ‘him’. I realise that not all lodgers are male, but it makes writing a lot easier, and to be continually saying his/her is a very cumbersome way to write. Please take it that references to male lodgers include female lodgers also).

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What is your experience of the things discussed in this section? Have any of your lodgers tried to claim they had a tenancy? Do you provide services to your lodger? Has your lodger tried to lock you out of his room?


Notes:
I am afraid I am no longer able to answer readers questions on this blog. However the anwers to questions asked in the past may help you

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17 Responses to Day 1 – What is a lodger?
  1. Diane BNo Gravatar
    February 1, 2010 | 9:43 am

    So, if a student is the landlord and has 3 student lodgers does that mean exemption from the HMO regulations?

  2. TessaNo Gravatar
    February 1, 2010 | 10:29 am

    Hi Diane. I look at HMOs on Day 7, but basically if you have more than two lodgers who are not family members, you could be in an HMO situation.

  3. MikeNo Gravatar
    February 1, 2010 | 11:08 am

    If a licence or lodger agreement is drawn up, is it advisable to specify which room is designated as the lodgers main room. Without an agreement to this effect, can individual lodgers move the landlords beds and furnishings around, and change or even combine rooms. Should a landlord even act as the tenants moral compass and keep tenants strictly to their own rooms?

  4. TessaNo Gravatar
    February 1, 2010 | 11:18 am

    Hi Mike

    We deal with lodger agreements on Day 15. Basically it us up to you whether you specify the room. Many professionally drafted agreements don’t. If you were buying a lodger agreement is this something you would want to see specifically set out in the agreement?

    A polite lodger should ask his landlords permission before moving furniture around. This is also something that could be set out in the agreement, or perhaps the house rules (looked at on day 14). As can overnight visitors.

  5. niki gossNo Gravatar
    February 1, 2010 | 3:49 pm

    the provison of services do not make it a licence and not a tenancy. even the provisison of attendances ie personal services to the room such as clean sheets and towels as opposed to services not attendances such as cleaning common parts.

    Regard should be had to he old Rent Act case law in this area.

    It is to be noted that the Rent Act main provisions only applied to tenancies but there were express provisons to exclude from main provision control cases where Substantial Attendances were provided.

    substantial furnishing also excluded the main provisions until the 1974 rent act

    insofar as exclusion from the PoE77 this againrefers back to the rent acts and the case law on kitchens have gone both ways

  6. TessaNo Gravatar
    February 1, 2010 | 4:17 pm

    Thank you for your comments Niki. In reality it is highly unlikley that a householder taking in a lodger to make a bit of extra money, will ever be involved in a court case where these esoteric matters are considered.

    However in the unlikely event that they were, I think a landlord who provided clean sheets, who made a point of entering the room from time to time without asking permission first, and who shared at least one room with the lodger, would be all right.

    So far as kitchens are concerned and old case law, most kitchens are used as kitchen diners nowadays and are are very much living rooms – indeed they are often at the heart of family life. The statute says “shares any accommodation”. I think a modern kitchen would probably come within this. Although I agree that it would be better if other rooms were shared with the lodger as well.

  7. PaulNo Gravatar
    February 6, 2010 | 6:25 pm

    Hi Tessa, great idea for a blog. My lodger has asked for permission to put a lock on his door. Assuming this gives him a tenancy because he gets exclusive possession of his room, should I be concerned? He can’t have a statutory tenancy because I live in the house (I think?), and I (think) that he is still required to leave if I give him notice. What is the legal/practical downside for me if I let him fit a lock?

  8. TessaNo Gravatar
    February 6, 2010 | 7:10 pm

    Hi Paul

    You really need to read the rest of the 21 days. For example take a look at Day 4, and in due course Day 20. My advice however is not to allow the lock, or only to allow it on condition that you have a key and will go in as and when you need to.

  9. VanessaNo Gravatar
    February 8, 2010 | 10:01 am

    Hi Tessa,I am very concerned about a situation with my ancient mother who has allowed a very unpleasant man to live in her house. I have many questions but firstly, what is the legal position if he is not paying any rent?

  10. TessaNo Gravatar
    February 8, 2010 | 10:06 am

    Hi, Vanessa. We look at dealing with problem lodgers on day 19 and on evicting lodgers on Day 20. Have a look also at the lodger agreement – some specify that the license to occupy will end automatically if the rent is not paid for two months.

  11. VanessaNo Gravatar
    February 9, 2010 | 11:29 am

    This situation started approximately 6 years ago, about a year after my mother’s husband died, and after my son had to move away who had been living there until that point. There has never been a written agreement and although the problem lodger initially paid rent, after 3 years and on the advice of her solicitor, my mother stopped charging. Can you tell me what rights the lodger/guest(?) now has and if he will aquire them in time. My mother is 84.

  12. TessaNo Gravatar
    February 9, 2010 | 11:41 am

    Hi Vanessa. I will get to dealing with problem lodger on Day 19. I don’t really want to pre-empt this, or discuss problem lodgers on this page. Sorry.

    If you would like some ‘one to one’ advice, note that I offer a fixed fee advice service to members of my Landlord Law web-site which you can read about here http://www.landlordlaw.co.uk/pagedetail.ihtml?id=7805.

    Can anyone reading this please note that questions on problem lodgers posted to this page will not be published – any comments on problem lodgers should be made to the Day 19 post (which will go live on 19 February 2010).

  13. [...] Day 1 – What is a lodger? This looks at whether there is a legal definition of a lodger and gives advice on avoiding creating a tenancy.  There are some interesting comments on this tip. [...]

  14. VanessaNo Gravatar
    February 11, 2010 | 10:35 am

    Hi Tessa, Thanks for that I will look our for Day 19. I have been a landlord some years and have consulted fellow landlords, solicitors and Age Concern about this situation none of whom have definite advice so it may well be that your ‘one to one’ service will be the answer. Also wanted to say how good your Lodger Landlord tips are. Excellent, thank you.

  15. westminsterNo Gravatar
    May 11, 2010 | 7:08 pm

    Tessa, A couple of questions.

    Q1: I’m confused about the issue of potentially granting a tenancy by having a lock on the lodger’s room. As I understand it, if an occupier shares accommodation with his landlord, and the property is the landlord’s only or principal residence, then the occupier is ‘excluded’ – that is, the Protection from Eviction Act 1977 does not apply.

    This being the case, if the lodger had a ‘tenancy’ by virtue of having exclusive possession of his room, what might be the consequences of this tenancy?

    Q2: Let’s say that a tenant with an assured shorthold tenancy takes in a lodger (and follows your advice to provide small services and not to give the lodger exclusive possession of his room), and the contract prohibits ‘subletting’ – would the AST tenant be in breach of the contract?

  16. TessaNo Gravatar
    May 12, 2010 | 9:40 am

    Q1. Having a lock on the door is not conclusive but will be a strong indication. Each case will turn on its own facts. The 1977 Protection from Eviction act points are looked at here.

    The main implcations of having a tenancy are that the landlord will be bound by the statutory repairing covenants in s11 of the Landlord & Tenant Act 1985, and having a sub tenant could put the landlord in breach of the terms of his mortgage and insurance policy. Also if the landlord stops living at the property, the tenancy will convert to an AST requiring a minimum notice of 2 months if the landlord wants the tenant to leave.

    Q2. The phrase ‘sub letting’ generally means letting as a tenancy, particuarly as many tenancy agreements also prohibit paying guests and lodgers. However any tenant wanting to take in a lodger should speak to their landlord about it first. Most landlords will agree particuarly if the reason for taking a lodger is to prevent the tenant falling into arrears of rent.

    I will probably be doing posts on these points later so keep an eye on the blog.

    Note that I am going to close comments on this post now, as this is an introductory post to the 21 days series, and the points covered are now dealt with in more detail elsewhere on the site.

  17. [...] Day 1 – What is a lodger? This looks at whether there is a legal definition of a lodger and gives advice on avoiding creating a tenancy.  There are some interesting comments on this tip. [...]

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