I did a talk recently at the Landlord & Buy to Let Show in London (5/3/10), and it was clear from some of the questions asked, that, even though I covered this topic on Day 1 of my 21 days of tips, people are confused about the difference between a lodger and a tenant.
I am not surprised! It is a typical lawyerlike distinction, and can be confusing even for the lawyers. However it is quite important. Why?
- Because a tenant ‘owns’ the property, room, or whatever, for the period of his tenancy or lease
- The tenant therefore has the legal right to keep the landlord out of the property (or room)
- The landlord may have to get a court order for possession to evict
- The landlord has various repairing duties which he cannot pass on to the tenant (this comes from the Landlord and Tenant Act 1985, section 11)
So how can you tell which is which? Here are the five main differences:
1. A lodger lives in the landlords home and shares living accommodation.
So if the occupier lives in the granny flat and only shares a hallway, he will be a tenant.
2. The landlord must live in the property throughout the time the lodger is there.
Therefore:
- if you own a house where you rent out rooms and live elsewhere, but then decided to move in yourself when one of the rooms become vacant, this does not turn your tenants into lodgers. They will carry on being tenants, even though you, their landlord, are now living in the property. (Although people who move in afterwards may be lodgers)
- Likewise, if you move out while the lodger is still there, then the lodger will become a tenant. This is only if you move out permanently, its all right to go on holiday for a few weeks.
3. The lodger must not have ‘exclusive occupation’.
This means, basically, that you must not let him put a lock on the door of his room (or indeed any other room) and keep you out. You must maintain the right to go in the room from time to time, although respecting your lodgers privacy at all times.
If your lodger has a lock on his door and you do not have a key, and you have not entered the room without his permission for several months or years, then he may well have a tenancy.
These three are the most important differences. However there are two other signs that someone does not have a tenancy:
4. If the landlord provides services
This is not absolutely essential, and not all lodger landlords do this. However if certain services are provided, then the occupier cannot in law have a tenancy. The normal services which can be provided are any of the following:
- providing clean towels and sheets
- room cleaning (ie the lodgers room)
- meals, generally this is just breakfast but sometimes evening meals are provided also
This is why you do not have a tenancy of your hotel room when you go on holiday.
I would *strongly advise* that all lodger landlords at the very least, provide clean sheets, and use this as a reason to enter the room at least once a fortnight.
5. The landlord can move the lodger to a different room in the property
This is the least reliable of the five signs, and signed agreements may be negatived by actual conduct.
For example, if your lodger has in fact stayed in the same room for 20 years, has had a Yale lock on it for the past 15 years, and you never go in there, the fact that he may have signed a piece of paper when he first moved in saying that you have the right to move him to another room will probably not mean much. He is almost certainly be a tenant (unless you provide meals).
On the other hand, if he moves to the back bedroom when your Auntie Maud comes to stay (because she prefers the front bedroom), this would be a strong indication that he is a lodger and not a tenant.
I hope this post has made things clearer. Or do you still have worries? Please leave a comment if so.
Note that you can read a lot more about landlords and lodgers in my 21 days of tips for Lodger Landlords. If it is clear that you have a tenant rather than a lodger, then my Landlord Law web-site service should help.
