From talking to people and reading the questions that people ask, it is clear that many are hopelessly confused about the difference between a lodger (which is a type of occupation license) 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 will usually need to get a court order for possession if they want to evict the tenant
- The landlord has various repairing duties which he cannot pass on to the tenant (from Landlord and Tenant Act 1985, section 11)
On the other hand, a lodger / licensee is someone who has permission to be there so he is not a trespasser.
So how can you tell which is which? Here are the five main differences:
1. A lodger lives in the landlord’s (main) home and shares living accommodation.
So if the occupier lives in the granny annexe or garden which has its own front door or only shares a hallway – he will be a tenant. Although as there is a resident landlord he will not have an assured shorthold tenancy (I have a lot of information about these tenancies and suitable tenancy agreements on my Landlord Law site).
He will be a lodger if he lives in the spare room and shares his landlord’s kitchen, bathroom and sitting room.
2. The landlord must live in the property throughout the time the lodger is there.
- 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. Although 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)
This is why you do not have a tenancy of your hotel room when you go on holiday.
Meals can also be evidence of a lodger rather than a tenancy agreement but is not such a significant test. You can, for example, provide a meals service for tenants, and this won’t necessarily stop them being tenants.
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 agreement clauses to this effect 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 a tenant.
On the other hand, if he moves to the back bedroom every time 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.
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.