Excluded Tenancies and Licences UK — When Landlords Do Not Need a Court Order to Evict

What is an Excluded Tenancy or Licence? The PEA 1977 Definition

The Protection from Eviction Act 1977 s.3A defines excluded tenancies and excluded licences as follows: (a) Tenancy or licence where the landlord or licensor shares the accommodation: a tenancy or licence under which the occupier shares accommodation with the landlord or licensor (and the landlord or licensor occupied the premises as their only or principal home at the time the tenancy or licence was granted and at the time notice of termination is given) is excluded from the PEA 1977 court order requirement; critically, 'sharing accommodation' means genuinely sharing living space — a kitchen, bathroom, or living room shared with the landlord; where the occupier has exclusive use of a self-contained unit (with their own bathroom, kitchen, and living space) the lodger exception does not apply; (b) Tenancy or licence of holiday accommodation: a tenancy or licence granted for the purpose of a holiday is excluded; the occupier's right to occupy ends when the holiday ends; attempting to use holiday lets to avoid residential protections (by labelling a year-round tenancy as a 'holiday let') does not create an excluded tenancy — the nature of the occupancy, not the label in the agreement, determines the status; (c) Licences granted without payment: a licence to occupy granted free of charge (i.e. a gratuitous licence) may be excluded where the licensor did not grant it in the course of a business; (d) Accommodation provided by an educational institution: accommodation provided by a specified educational institution directly to a student is excluded; student accommodation managed by approved bodies (universities; higher education corporations; further education corporations) in their own halls of residence is typically excluded; private landlords letting to students individually are NOT excluded simply because the tenant is a student — the exclusion is for institutional halls of residence, not private sector student lets; (e) Local authority and registered provider licences: certain licences granted by local authorities, housing associations, and registered providers of social housing are excluded from the PEA 1977 requirement.

• Resident landlord lodger: the core excluded tenancy/licence scenario — the landlord lives in the same property as the occupier and shares living accommodation; the landlord must have occupied the property as their only or principal home when the agreement was granted AND when notice is given
• Self-contained vs shared: an occupier with their own self-contained flat (exclusive kitchen, bathroom, and living space) is NOT a lodger — they have an assured shorthold tenancy (or assured tenancy) and a court order IS required to evict
• Holiday lets: a genuine holiday letting is excluded; a sham holiday let (year-round occupation labelled as a holiday) is NOT excluded — courts look at the substance, not the label
• Student halls of residence: institutional student halls provided directly by educational bodies are excluded; private sector student lets to individual tenants are NOT excluded by reason of the student status alone
• Labels do not determine status: calling an agreement a 'licence' does not make it an excluded licence if the occupier has the characteristics of an assured tenant (exclusive occupation; residential use; separate from the landlord); substance over form

How to Terminate an Excluded Tenancy or Licence

An excluded tenancy or excluded licence can be terminated without obtaining a court order, but the landlord must still give reasonable notice: (a) What notice is required: there is no prescribed form for terminating an excluded tenancy or licence; the notice must be reasonable in all the circumstances; the courts have held that the length of reasonable notice depends on how long the occupier has been in occupation, the frequency of rent payments, and any agreed notice period — typically at least 28 days (four weeks) is regarded as reasonable for a regular lodger; (b) Method of giving notice: notice should be given in writing for evidential purposes; it may be given verbally but this is difficult to prove; the notice should state the date by which the occupier is required to leave; (c) Recovering possession without a court order: after the notice period has expired, the landlord can use peaceable means to recover possession — changing the locks (provided the landlord has access to do so under the shared occupation arrangement) and collecting the occupier's belongings; the landlord may not use force against the person of the occupier; the landlord may not harass the occupier (persistent noise, removing facilities, interfering with access) to pressure them to leave before the notice expires; (d) Warning on using force: even for excluded tenancies, the landlord who uses force against the occupier's person commits a criminal offence (assault); the landlord who damages the occupier's property commits criminal damage; the landlord may only use reasonable force to recover the property itself once the notice period has expired; (e) Keeping evidence: the landlord should keep records of the occupier's agreement (ideally a written lodger agreement), rent payments, the notice given, and steps taken to recover possession — in case the occupier later claims they were an assured shorthold tenant unlawfully evicted.

• No court order needed: excluded tenancies and licences can be ended by reasonable notice alone — the landlord can physically recover possession (change locks) once notice has expired without obtaining a court order
• 28 days is the minimum reasonable notice for most lodger arrangements: there is no statutory prescribed period; courts regard at least 28 days as reasonable for a regular paying lodger; short-term arrangements may require less
• Notice in writing: always give notice in writing and keep a copy; verbal notice is valid but difficult to prove in any subsequent dispute
• No force against the person: the landlord cannot use physical force against the occupier even after notice expires; changing locks (to the building or shared spaces) is permissible once the occupier is absent or has been asked to leave
• No harassment: harassment of an excluded occupier before the notice expires is still unlawful and can give rise to civil and criminal liability; the right to exclude without a court order only arises after the notice period has expired

Unlawful Eviction and the Consequences of Misclassifying an Occupancy

The consequences of wrongly treating an assured shorthold tenant as an excluded occupier and evicting them without a court order are severe: (a) Criminal liability under PEA 1977: under PEA 1977 s.1, it is a criminal offence for any person unlawfully to deprive a residential occupier of their occupation of residential premises, or to attempt to do so, with the intention of causing the occupier to give up the occupation; it is also an offence to do acts calculated to interfere with the peace or comfort of the occupier (harassment) with the intention of causing them to give up occupation; (b) The standard offence (s.1(2)): depriving a residential occupier of their occupation without following the proper legal process (court order for a non-excluded tenant) is a criminal offence regardless of whether the landlord intended to act unlawfully — the intention is directed at the eviction, not at the legal consequences; (c) Civil liability: in addition to criminal liability, an unlawfully evicted tenant can sue the landlord for damages under the Housing Act 1988 s.28; the damages are measured as the difference in value of the landlord's interest in the property with and without the occupier — effectively, the landlord pays the occupier the market value of their tenancy; for a London property, damages have exceeded £50,000 in reported cases; the landlord is also liable for general damages for distress and inconvenience; (d) Reinstatement: the court may order the landlord to reinstate the occupier — physically returning them to the property — pending resolution of their right to a new or extended tenancy; (e) Insurance implications: many landlord insurance policies exclude liability for unlawful eviction claims; check the policy carefully before taking any self-help action; landlord legal expenses insurance typically covers the defence of unlawful eviction claims.

• Criminal offence (PEA 1977 s.1): unlawfully depriving a residential occupier of their home is a criminal offence — it is irrelevant that the landlord believed they were entitled to evict; the offence is complete on the deprivation
• HA 1988 s.28 damages: a successfully evicted tenant can recover civil damages measured as the difference in the landlord's interest with and without the occupier; damages can be very large for high-value properties in London and the South East
• Harassment also a criminal offence: acts intended to interfere with the occupier's comfort or peace of mind to drive them out (before or after notice) are a separate criminal offence under PEA 1977 s.1(3); includes persistent noise, cutting off utilities, removing furniture, or entering without notice
• Court reinstatement order: a court can order the landlord to reinstate the occupier — physically returning them to the property; this is a powerful remedy in addition to damages
• Seek legal advice before any self-help: if there is any doubt about the occupancy status (excluded vs assured shorthold), seek legal advice before taking any action to recover possession without a court order; the risk of misclassification is very high and the consequences are severe

Lodger Agreements — Best Practice for Resident Landlords

Resident landlords taking in lodgers should use a properly drafted lodger agreement that makes the excluded status clear from the outset: (a) What a lodger agreement should contain: the parties (landlord and lodger); the property and the rooms included in the lodger's right of occupation; the rooms shared with the landlord (kitchen, bathroom, living room); the weekly or monthly payment; the services included (broadband; utilities; laundry); the notice period (recommended: at least 28 days by either party); the landlord's right to access the lodger's room on reasonable notice (or at any time in an emergency); the prohibition on sub-letting; the deposit terms (Tenancy Deposit Scheme does not apply to excluded licences, but best practice is to hold the deposit separately and return it within an agreed period after termination); (b) Key drafting points: the agreement must make clear that the landlord lives in the property as their principal home; that the lodger has use of the specified shared facilities together with the landlord and other occupants; and that the lodger does not have exclusive occupation of any self-contained unit — a self-contained 'annexe' or 'granny flat' with its own kitchen and bathroom may give rise to an assured shorthold tenancy rather than an excluded licence even if the main house is occupied by the landlord; (c) Deposit: the tenancy deposit protection schemes (TDP schemes) do not apply to excluded licences; the landlord may hold a deposit without registering it; however, keeping a signed, written record of the deposit amount and the conditions for its return is strongly recommended; (d) Right to rent checks: the Immigration Act 2014 right to rent checks apply to all occupiers of residential premises regardless of whether the occupancy is a tenancy or a licence — resident landlords must carry out right to rent checks on lodgers; failure to do so is a civil penalty offence.

• Written lodger agreement essential: a written excluded licence agreement that clearly records the shared living arrangement, the payment, the notice period, and the deposit terms protects both parties and establishes the excluded status
• Confirm landlord occupies as principal home: the excluded status depends on the landlord occupying the property as their only or principal home both at the time the agreement is granted and when notice is given; if the landlord moves out, the lodger may become an assured shorthold tenant
• Self-contained annexe risk: if the lodger has their own kitchen, bathroom, and living space (a self-contained flat or annexe), the excluded licence status may not apply even if the landlord lives in the main house — the occupier may have an assured shorthold tenancy
• Tenancy deposit protection does not apply: lodger deposits do not need to be registered in a TDP scheme; the landlord can hold the deposit directly; keep a written record of the deposit amount and return terms
• Right to rent checks apply: the Immigration Act 2014 right to rent checks must be carried out on all lodgers regardless of excluded status; civil penalties up to £20,000 per illegal occupier apply for non-compliance

Frequently asked questions