Excluded occupiers

Some occupiers are excluded from protection under the Protection from Eviction Act 1977.

Excluded occupiers can be evicted without a court order once their tenancy or licence to occupy has been brought to an end.[1]

The Act sets out the following categories of excluded occupier:[2]

• people sharing accommodation with a resident landlord

• former trespassers granted temporary rights to occupy

• people renting holiday lets

• people occupying accommodation rent free

• asylum seekers in UKVI accommodation

• licensees in public sector hostels

• people with no right to rent where the Home Office has served notice

Case law has also established that homeless applicants are excluded occupiers if they have been granted a licence to occupy interim accommodation or accommodation under the duty to applicants found intentionally homeless.[3]

Shared accommodation includes any room such as a kitchen, living room or bathroom but excludes storage areas, stairways and hallways.[4]

Sharing accommodation with a resident landlord

The occupier can be excluded if the accommodation is shared with a resident landlord.

A landlord might claim an occupier is a lodger but if the landlord is not actually resident, this could indicate that it is a sham agreement.

To qualify as a resident landlord of an excluded occupier, the landlord must live in the same premises of which the whole or part of the shared accommodation with the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end.[5]

If there are two or more joint landlords, one of them living in the same building as the occupier qualifies as a resident landlord.[6]

Where an occupier has a resident landlord but does not share accommodation with that landlord they will be an occupier with basic protection.

Change of landlord

If the landlord sells the property and the new owner plans to be a resident landlord, the new owner must:[7]

• give notice to the tenant within 28 days of the sale that they intend to live in the property

• move in within six months of the sale

Until the new owner moves in, if there is no resident landlord the occupancy ceases to be excluded and an assured shorthold tenancy or a regulated tenancy might arise. This protection is lost if the new owner moves in within the six month time limit.

Sharing accommodation with resident landlord's family member

The occupier can be excluded also if the accommodation (defined as above) shared is with a family member of the resident landlord.[8]

For the occupier to be excluded it is necessary that the:

• landlord's family member must have occupied the same premises of which the whole or part of the shared accommodation with the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end, and

• landlord must live in the same premises of which the whole or part of the shared accommodation between their family member and the occupier forms part, and have occupied the premises as their only or principal home both at the outset of the occupancy agreement and at the time it comes to an end

The meaning of family is the same as that in section 113 of the Housing Act 1985 and includes: spouses, civil partners, parents, grandparents, children, grandchildren, brothers, sisters, uncles, aunts, nephews, and nieces.[9]

This covers temporary arrangements granted to people who entered the premises as trespassers.[10]

For example, it covers the situation where a landlord discovers a squatter in their premises and allows the squatter to stay on a temporary basis, paying a weekly fee or rent until the landlord needs possession.

This covers tenancies and licences that are genuinely granted for the duration of a holiday.[11]

A landlord might label an agreement as a holiday let but if the property is not actually let for the purposes of a holiday, this could indicate that it is a sham agreement.

This covers occupiers who have no obligation to pay rent and are not obliged to carry out other services in lieu of rent.[12] This could include situations where accommodation is provided by relatives.

The courts have held that an undertaking by the occupier to keep a property repaired and insured was sufficient to be a payment for money or 'money's worth' (services in lieu of rent).[13] However, an agreement to pay nothing but fuel and food bills was not.[14]

An occupier, who lives in rent-free accommodation owned by their employer and who receives lower wages in return for this, is treated as paying money's worth and may be either a service occupier or service tenant.

This covers tenancies or licences granted to asylum seekers in order to provide accommodation under Part 6 of the Immigration and Asylum Act 1999,[15] and includes accommodation with private landlords provided by the UKVI.

The tenancy or license is not excluded where accommodation is granted to an asylum seeker outside these provisions.

A hostel means a building in which the accommodation provided is not separate and self-contained and either board and/or facilities for the preparation of food is provided for residents.[16]

Public bodies who can grant excluded licences include:[17]

• local authorities

• development corporations

• the Commission for New Towns (abolished 1 April 2009)

• Housing Action Trusts

• private registered providers of social housing

• other public bodies authorised, from time to time, by the Secretary of State to grant licences in hostels

• charitable housing trusts

A charitable housing trust might not be registered as a private registered provider or registered social landlord. In these cases it will be necessary to check the trust deed that set up the charity and/or check its accounts to see how its funds are in fact used, in order to establish if an organisation can be classed as a charitable housing trust.

This covers situations where the Home Office serves a disqualification from renting notice (under section 33D(2) of the Immigration Act 2014) on the landlord naming all of the occupiers in the premises.

In this situation, an assured tenancy, Rent Act protected tenancy or tenancy with basic protection is converted into an excluded tenancy.[18]

This category is not included in section 3A of the Protection from Eviction Act 1977.

The courts have held that homeless applicants are not subject to protection under the Protection from Eviction Act 1977 when granted a licence to occupy accommodation under the following sections of the Housing Act 1996:[19]

• section 188 (accommodation pending inquiries)

• section 190 (duties to an applicant who has been found intentionally homeless)

This includes self-contained accommodation.[20]

The Supreme Court has held that this is not inconsistent with an occupier's rights under Article 8 of the European Convention on Human Rights.[21]

Where a local authority grants a tenancy under another duty, such as the main housing duty, it will normally be a non-secure tenancy.[22] The occupier will have basic protection.

A tenant who falls into one of the excluded categories will not be an excluded occupier if their tenancy agreement began before 15 January 1989, and there has been no rent increase or substantial variation of the terms of the tenancy on or after that date.[23]

This is because section 3A of the Protection from Eviction Act 1977 did not come into effect until 15 January 1989.

This does not apply to any licensee whose agreement began before 15 January 1989.

If an excluded occupier wants to leave, the steps they must take depend on:[24]

• what the agreement says

• whether they have a periodic or fixed-term agreement

• whether they have a tenancy or a licence

Periodic occupiers

If an excluded occupier has a periodic contract that specifies a notice period, then they must give that amount of notice. The contract could also specify that the notice needs to be in writing.

If the notice period is not set out in the contract (or if there is not a written contract) at common law an excluded tenant must give notice equivalent to their rental period. The notice must expire at the first or last day of a period of the tenancy.[25] In the absence of a contractual provision, excluded licensees must give reasonable notice.

Fixed-term occupiers

If the occupier (tenant or licensee) has a fixed-term agreement, unless there is a break clause allowing them to leave earlier than the the expiry of the fixed term, they have to remain until the end of the term. If the occupier leaves before the end of the fixed term, they are legally liable to pay the rent for the whole of the term.

Excluded occupiers can be evicted without a court order once their tenancy or licence ends.

The landlord needs to give notice to end a periodic tenancy or licence, or to end a fixed term early using a break clause or forfeiture clause.