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.
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. 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.
We are moving to another property but our son is staying in the existing property RENT FREE but we are paying the utility bills which he is reinmbursing us for
Our son is contemplating taking in two friends as lodgers to help with the cost
What is our position if we are suddenly required to sell (probably in about two years time we will sell anyway)
It could be construed that your son had a tenancy, it is difficult to say. In any case if he refused to move out you would be in a difficult postiion and would have to evict him through the courts before you coud exchange contracts on your sale.
I would strongly advise against exchanging contracts until you have vacant possession.
Thank you for your advice and guidance, for once everything seems a lot clearer in the main.
I just have one area of confusion. As a Resident Landlord, I haven’t put any locks on doors, bar mine, and I was worried that if I put locks on all of the other doors, for the lodgers, then that will change them into tenants, and I am trying to avoid that. Even if I did put locks on I will have a copy of the keys. I don’t provide services as such, but enter the rooms for cleaning purposes but only after I’ve let them know, since they are good lodgers and I want to maintain a good relationship as well.
Thanks again
Regards
Putting a lock on the door does not necessarily turn a lodger into a tenant, it depends generally on the circumstances of the letting. I know that sounds vague and woolly but it is impossible to give hard and fast rules. Circumstances differ.
But it can be a sign that the letting is not that of lodger so is best avoided if possible.
Hi, Maybe you could help, i have a friend living in my property as i work away a lot an agreement was never made up however he pays £200pm into my account towards the mortgage. He pays no other bills. I recently came home to find a mouldy patch caused by water leakage into his room which has now required a £180 carpet. On asking him he said it had been like it for months but thought nothing of it. Respecting his privacy i had never looked in there. He has recently broke other items in the house whilst drunk. Do i have any rights living in the house and now it seems more like a money matter rather than that between friends. I was going to up his rent but he says he cant afford it but spends every night in the public house.
Any Help on this matter woulde be greatly apprecioated
Paul
Sounds like you ought to get him to leave. You can read about the procedure on days 19 and 20 in the 21 days of tips and elsewhere on the site.
Hi,
I currently live in a shared student house with four other students and myself. One of the other students is a daughter of the land lady, who lives here permenantly.
Does this mean we are lodgers and not tenants?
Thanks,
Richard
Could well be. It depends on how they have set it up and what paperwork you have.
thanks Tessa . most helpfull x
I have recently started to move out of my own property, to which I have had two friends staying with me, I instructed a letting agent to let my property but the so called friends asked if they could let the property from me through the agent, to this I agreed, but to date they have still not signed the agreement to let the house and no form of contract has been formed. I am still moving things from the house and also clean the house on a regular basis. I am finding myself stuck as to what to do as the agent is saying until they inform me as to there intentions.We are at a loss. Any input would be great. regards a rather stressed Andrea.
Hi Andrea, its a bit difficult to answer without knowing more. For example if they have been paying you rent and you have definitely moved out, they may well be tenants already.
If you are still living at the property, then they may be classed as lodgers and you would be able to use the lodger eviction procedure set out on days 19 and 20 of my 21 days of tips.
I currently jointly own a home with a friend of mine. I am moving out and he will stay in the property and I will be renting out my room. Is the person moving into my room considered a lodger or a tenant if I do not live there but one of the home owners still lives there. I will be receiving the income for the room. Thanks
Hello,
I am currently residing in a 2 bed apartment and hold a standard contract with my landlord, and am the legal tenant. We get on very well, and he has agreed to let me rent out the spare room on my own accord. I have found someone to rent and just wanted to confirm- is this person considered a tenant or a lodger?
And would a lodger tenancy agreement like this one http://www.lettingexpert.com/free_lodger_agreement_UK_furnished.pdf suffice as a an official document?
Hi,
I’m taking in a lodger and then going travelling for 5 months. I will be leaving my bedroom with my stuff in it and moving back in when I’m back – is there a limit on the length of holiday? Will my lodger turn into a tennant while I’m travelling?
Many thanks,
Cheryl
Nigel – The person will probably be a lodger as his landlord will be your friend the co-owner. Provided he lives in the property as his main home throughout the whole time the lodger is there.
Rasha – the person in the spare room will be your lodger and you will be his landlord. Provided you follow the advice on this website – I suggest you read around a bit.
Cheryl – Five months is rather a long time. You may be all right. The important thing is to pick someone to be the lodger who is not going to take advantage of the situation.
However if you were going to be away much longer I would be tempted to suggest you just rent the house out on a proper tenancy.
Hi, we have been approached by a friend of a friend enquiring if we would rent 2 of the rooms in my partners house until he resolves his divorce, should be within a year. My partner does not spend much time there, perhaps a day a week. She is either at my house or looking after her Mother who is ill at the moment and requires care in her house. The property is question is her ‘main’ residence and is is fully furnished, stocked with food and she keeps clothes etc there. Is it advisable to take him on as a lodger to take advantage of the rent a room scheme or do you forsee any potential problems.
Thank you or your thoughts
Andy
Hi there,
I’ve given my tenant a short-hold tenancy agreement in error which he has signed but also pointed out it was wrong for me to have given him this. I have drafted a new copy single page agreement but he refuses to sign it and says the original one is binding. what do I do?
I think you need to be careful. If she did go ahead I think she should spend more time there and sleep there from time to time. Otherwise there may be a danger of him claiming he has a tenancy.
@Jackson You can’t force him to sign a new agreement if he does not want to. However if he lives in your house and shares living accommodation with you it CAN’T be an AST. Whatever he may think.
I have been renting a room in a house for 8 years. There are 4 others who rent rooms as well. The owner of the property lives abroad. He says that we are lodgers as we pay weekly rent and there is no signed agreements of any kind. How do we prove to him that we should be tenants and not lodgers?
@tony The landlord is wrong – you do not need a tenancy agreement to create a tenancy. I did a blog post about it on my Landlord Law blog http://www.landlordlawblog.co.uk/2010/08/06/urban-myth-you-cant-have-a-proper-tenancy-without-a-written-agreement/
You could perhaps show him that.
Hi,
I have lived with 4 lodgers for over 6 years, all lodgers have a lodger agreement.
Now I have moved out 6 days ago permanently !
Do I need to issue new tenancy agreements ?
I also hold the damage deposits what should I do with these ?
Do I have to send the deposits to the DPS ? as the DPS terms state that I have to register the deposit within 28 days of receiving the deposits.
Thanks
If you have moved out permanently then you are no longer a resident landlord and they are no longer lodgers. You need to give them an assured shorthold tenancy agreement (although if they refuse to sign it, this will not alter their status as tenants) and arrange to protect the deposits.
You will find out more about your obligations as a landlord on my Landlord Law site: http://www.landlordlaw.co.uk/information-about-landlord-law-landlords
I am thinking of renting out my house to individual people on a room only basis. I will also be going to work abroad for 2 years but will return to the UK for holidays, so want to have a room at my house. Do you know what type of contract I should give potential tenants/lodgers? Also can my father and friend act as an agent on my behalf?
@ if you are living abroad for two years, I don’t think you would be classed as a resident landlord any more (as two years is quite a long time) so your ‘lodgers’ would probably actually be tenants. After you had left to go abroad anyway.
In which case you probably should give then tenancy agreements – after you have moved out anyway. There is no reason why you should not retain a room for your own use or get your father / friend to act as agent.
This site is just about lodgers – you can find out about tenancies on my Landlord Law site at http://www.landlordlaw.co.uk. Probably one of my type B tenancy agreements would be suitable.
I own a flat and will let it out to someone for the week, and I will use the flat at the weekend some of the time. Is the person a lodger or tenant?
@Peter Its a bit difficult to say for sure. I suspect that if the case went to court the Judge would have a hard time making up his mind and would need evidence about where your main accommodation was, how long you spent there etc. The best thing is to make sure you and your lodger/tenant get on so there is no dispute!
Hi Tessa,
I’ve just moved out of a property but the live-in landlord has failed to return my holding/security deposit. I have him a month’s notice but now he is stating that I have no rights as a lodger and wants to file a claim against me for harassment.
He has 4 people living in the property unrelated to his family sharing 1 bathroom, which is against HMO(House in Multiple Occupation) rules in the UK. Also he does not have a HMO licence, which is a criminal offence as well. He has all his lodgers pay him cash therefore he is also evading tax. Do I have locus standi against this person, and would it be difficult to prove more lodgers are living in his property?
Thanks
John
My husband and I have a house with 3 empty bedrooms and a wonderful home and property we wish to share as “temporary” housing for college students, families visiting hospital patients, missionaries, and people in need that are in a transition between A & B whatever those are. We have a boiler contrac and have the person staying listed as lodger so that they realize this is temproary and we have full rights of the home and they are just staying in our home. Is there any hidden pits we should be aware of. We don’t have anything of value in the house as we live neat and cheap.
Thank you for this site and your wisdoms. I will keep reading and perhaps find all I need doing that. Thank you for your caring.
Bea
@John If you want your deposit back and he fails to return it, you can claim it back via the small claims court – for example by using the money claim online service. It is not harassment to want your own money back.
The quesiton of the landlords legal or illegal conduct re HMO and tax will not affect your claim for the return of your deposit, but you can report the landlord to the authorities about it. Or threaten to do so if your money is not returned.
@Pastor Bea glad you like the site. I think I have covered most of the main points – the best thing to do is just read all the posts here. The 21 days series is quite helpful.
Hi Tessa. This post is really helpful, thank you for all these information! My husband and I are moving to the UK from Italy and we are renting a studio room in the landlords’ house (they live in there). The room is actually self-contained (a big open space with bathroom and kitchen facilities, which occupies an entire floor of the house) although I have to walk through their hallway and stairs. I have been introduced to the landlord by friends that I trust (and the landlord only takes recommended tenants/lodgers), therefore I tend to feel quite secure and confident about the whole thing. However, since I am new to the UK, I have some legal doubts. I do not have a formal contract, just an informal agreement. I will pay the rent (which is not super cheap but still convenient for the area considering the quality of the accommodation) by direct debit/cheque and the landlord will pay taxes on it. There are no locks on the door but there’s a regular key. The landlord will be paying for all bills (inc. council tax) except for gas (which will be on my name) and internet (which my husband is putting on his name). Now, I’m not quite sure whether I will be a tenant or a landlord (council tax on the landlord’s name, no actual contract, no locks… and I dont’ want them to have the right to walk into my “flat”). I am also concerned about my position as a resident in the UK. Could you give me your advice on my situation? Thanks very much in advance!
@Elisa It sounds like a tenancy from what you have said. Whether it is a tenancy or license won’t be affected by your nationality or by whether or not you have a written agreement. It will depend on the facts and what actually happens.
You may find some of the posts on my Landlord Law Blog helpful, for example the series on Foundations in Landlord and Tenant Law: http://www.landlordlawblog.co.uk/2011/07/01/foundations-of-landlord-and-tenant-law-index/
Hi,
Last year I moved in to a 2 bedroom flat with a friend and signed an assured shorthold tenancy agreement with the owner, for an initial period of 6 months. In January this year she asked my flatmate to leave and requested that I move in to his bedroom so that she could move back in to the room I was occupying. Shortly after this happened at the end of April she then asked me to leave as well, giving me 3 months notice.
I’m pretty sure my question has been answered in your article, but I just want to make certain. Am I still a tenant in this situation? Am I still bound by the terms of the assured shorthold tenancy agreement that I signed?
If you and your friend had a tenancy, the owner had no right to either ask your friend to leave or to move in herself. It is unfortunate that you did what she asked as it may be difficult to do much about it now.
Its a bit difficult to know what the legal situation is now, it may be that she is your lodger! Have a read of the information on my Landlord Law Blog, for example this series explains the law basics http://www.landlordlawblog.co.uk/2011/07/01/foundations-of-landlord-and-tenant-law-index/
Hi
I currently live in a house with two other friends. We all rent rooms on the basis that we have all signed seperate lodger agreements with the houseowner who does NOT live-in. He has asked us to move out and is being very rude about it. Although we have been served written notices he has been round the house daily removing furniture and shouting at us. His main argument is that we have no rights as lodgers not tenants but I have read that this qualifies as a HMO and we are tenants as default as he has not lived here for the whole duration.
Any advice is greatly appreciated.
Hello
I rent out a four bedroom house from my mother, I pay her rent for the property each month. I also have three lodgers to whom I rent out the spare rooms to. Does this 1) make me the landlord as as the property is my priamary recedence and my mother does not live in the property but ownes the property
2) Does this mean I can offer my lodgers loger’s agreements and not short hold tenancy agreement?
@Rae It sound to me as if you are probably tenants, and his behaviour is arguably harassment. I would suggest you get some advice. Shelter http://england.shelter.org.uk/get_advice may be able to help, or maybe speak to the Tenancy Relations Officer at your Local Authority.
@Nivea Yes, you will be the landlord and can give them lodger agreements. You can get an electronic one here: http://www.yourlawstore.co.uk/lodger-landlord-products/
Note that as you live in the same property it is not possible for them to be assured shorthold tenants.
Thank you for taking the time to help us all out 🙂
From the above I think I am a tenant. I rent a room in the house my landlord lives in, I have my own bathroom and he has put a lock on my door, and as far as I know I havee the only key. I only share kitchen facilities, and do not have any cooking/other services done for me. I did have a tenancy agreement at the start (8 months ago?) which was only 6 months long.
After all that ramble my question is just this: I am away for work for the next two weeks, and I wanted to know if I am within my rights to lock my door while I am away for that length of time? Although I was told this is my own personal space, I know for certain my landlord’s wife has been in looking around and moving things.
I currently rent a room and my landlady lives in the property. I am due to go on holiday for a week soon and I am wondering if I still need to pay £85 weekly rent for when I am away. I have checked the tenancy agreement and its says nothing about this. Where do I stand? Thanks in advance. Ian
@Laura If you have a tenancy then you have the right to lock out your landlord. If you are a lodger you don’t. That is the essential difference between them.
So if you think you have a tenancy, then if you are right you are fully entitled to lock the door while you are away.
@Ian Even if you are not there, your things will be in the room and your landlord will not be able to let it to anyone else. So yes, of course you must pay your rent.
You may be able to negotiate a slight discount though on the basis that you will be using less electricity etc during that time, but the landlord does not have to agree to this.
I was working with a charity who was paying me to be a mentor to would be homeless youths who lived with me at the time and the charity drew up a license agreement. The charity also had a new project where they introduced candidates from a homeless shelter to be placed in a 2nd house I own again with a varied license agreement and which I was responsible for all the utility bills. The charity and I have parted company and 1 man from my other house still remains but has refused to go after he gave a signed notice, so does this mean: 1. he is now an illegal squatter? Three youths who were living with me were moved in to the same house and are under his influence. Their license agreements had my home address on them instead of my 2nd house. The relationship has deteriorated to the extent I want them out of the house. They say they are tenants, I say they are lodgers because I pay all the bills and they rent a bedroom each and share the rest. I actually want to move in it myself, which I would have to consider doing while they are still there. What is my best course of action and are they lodgers or tenants?
@Lorraine If the three youths do not live in the same house as you they cannot be lodgers, whatever is written on their occupation agreement. It is likely that they will be tenants.
This site does not cover problems which are not lodger problems. If you want some legal advice from a specialist property litigation solicitor, take a look at this link here: http://tenancylawyer.co.uk/fixed_fee_advice.html