What is an excluded tenancy or licence?
The Protection from Eviction Act 1977 s.3A defines excluded tenancies and licences, occupancies where no court order is needed to evict: (a) Resident landlord lodger: the landlord lives in the same property as their main home and shares living accommodation (kitchen, bathroom, or living room) with the occupier; (b) Holiday lettings: accommodation let for the purpose of a holiday ends when the holiday ends; (c) Certain student halls of residence provided directly by educational institutions; (d) Licences granted free of charge (gratuitous licences). Where the occupier has exclusive use of self-contained accommodation (own kitchen and bathroom), an assured shorthold tenancy arises, not an excluded licence, even if the landlord lives in the same building.
- Resident landlord: must live in the property as their only or principal home both when the agreement is granted AND when notice to leave is given
- Self-contained flat = assured shorthold: exclusive kitchen and bathroom creates an AST not an excluded licence, even with a resident landlord in the building
- Holiday lets: genuine seasonal/holiday accommodation is excluded; labelling a year-round let a 'holiday let' does not create exclusion, courts look at substance
- Substance over label: calling an agreement a 'licence' does not make it excluded if the occupier has exclusive possession of residential premises
Terminating an excluded tenancy or licence
An excluded tenancy or licence can be ended by reasonable notice, no court order is required. At least 28 days is generally regarded as reasonable for a regular paying lodger. Notice should be given in writing. Once the notice period expires, the landlord can use peaceable means to recover possession (changing locks when the occupier is absent). The landlord must not use force against the person of the occupier or harass the occupier before the notice expires, both are criminal offences regardless of the excluded status. Keep records of the agreement, rent payments, notice given, and steps taken to recover possession.
Unlawful eviction consequences and lodger agreement best practice
Wrongly treating an assured shorthold tenant as an excluded occupier and evicting them without a court order is an unlawful eviction, a criminal offence under PEA 1977 s.1 and a civil wrong under HA 1988 s.28. Damages under s.28 can be very large (the difference in the landlord's property value with and without the occupier). Use a written lodger agreement that records: the shared accommodation; the landlord's principal home status; the payment; notice period; deposit terms. Right to rent checks under the Immigration Act 2014 must be carried out on all lodgers regardless of excluded status.
- Criminal offence: unlawfully evicting a non-excluded residential occupier without a court order is an offence under PEA 1977 s.1
- HA 1988 s.28 damages: can be very large, the difference in the landlord's interest with and without the occupier
- Written lodger agreement: records shared accommodation, landlord's occupancy, notice period, deposit; essential for evidential purposes
- Right to rent checks: apply to all lodgers; civil penalties up to £20,000 per illegal occupier for non-compliance