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Who is an excluded occupier?

This content applies to England

Categories of excluded occupiers.

Introduction

Excluded occupiers can be lawfully evicted without the landlord obtaining a possession order. However, the criminal offences of harassment and illegal eviction apply to excluded occupiers until their contracts have been terminated (see Harassment and illegal eviction for more information). 

Most of the categories of excluded occupiers are set out in the Protection from Eviction Act 1977.[1] Each category is explained below.

Resident landlord with shared accommodation

Accommodation, in this context, includes any room such as a kitchen, living room or bathroom but excludes storage areas, stairways and hallways.[2] A person can be an excluded occupier in the two cases below. However, if, in either case, the landlord moves out of the premises at any point, and does not have an intention to return, then the occupancy will cease to be excluded and an assured shorthold tenancy or regulated tenancy may arise.[3] If it does, then that tenancy will continue to retain its status even if the landlord moves back.

Sharing accommodation with a resident landlord

The occupier can be excluded if the accommodation (defined as above) shared is with a resident landlord.

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 her/his only or principal home both at the outset of the occupancy agreement and at the time it comes to an end.[4]

If there are two or more joint landlords, one of them living in the same building as the occupier will qualify as a resident landlord.[5]

See Who has basic protection for information on the situation where an occupier has a resident landlord but does not share accommodation with that landlord.

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.[6]

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 her/his only or principal home both at the outset of the occupancy agreement and at the time it comes to an end, and
  • the landlord must live in the same premises of which the whole or part of the shared accommodation between her/his family member and the occupier forms part, and have occupied the premises as her/his 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, in this context, 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.[7]

Occupancy agreement granted to trespassers

This covers temporary arrangements granted to people who entered the premises as trespassers.[8] For example, it covers the situation where a landlord discovers a squatter in her/his premises and allows the squatter to stay on a temporary basis, paying a weekly fee or rent until the landlord needs possession.

Holiday lets

This covers tenancies and licences that are genuinely granted for the duration of a holiday.[9] Certain agreements may be labelled 'holiday lets' but are in reality a sham not reflecting the reality of the situation.

Rent-free accommodation

This covers occupiers who have no obligation to pay rent and are not obliged to carry out other services in lieu of rent.[10] 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).[11] However, an agreement to pay nothing but fuel and food bills was not.[12]

An occupier, who lives in rent-free accommodation owned by her/his employer and who receives lower wages in return for this, is treated as paying money's worth and is not an excluded occupier under this heading (see Tied accommodation for information).

Accommodation for asylum seekers

This covers tenancies or licences granted to asylum seekers in order to provide accommodation under Part 6 of the Immigration and Asylum Act 1999,[13] and includes accommodation with private landlords provided by the UKVI. However, the tenancy or license will not be excluded where accommodation is granted to an asylum seeker outside these provisions.

Licences in public sector hostels

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.[14]

Public bodies who can grant excluded licences include:[15]

  • local authorities
  • development corporations
  • the Commission for New Towns (abolished 1 April 2009)
  • Housing Action Trusts
  • charitable housing trusts (if the housing trust is not registered as a private registered provider or registered social landlord 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)
  • private registered providers of social housing
  • other public bodies authorised, from time to time, by the Secretary of State to grant licences in hostels.

Home Office 'no right to rent' notice

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.[16] See Right to rent immigration checks for more information.

Accommodation licensed to homeless applicants

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

The courts have held that homeless applicants will not be 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:[17]

  • section 188 (accommodation pending inquiries)
  • section 190 (duties to an applicant who has been found intentionally homeless).

Temporary accommodation includes self-contained accommodation.[18] See Who has basic protection? for information about whether a tenancy granted to a homeless applicant under these provisions would be protected under Protection from Eviction Act 1977.

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.[19]

Exception: certain pre-15 January 1989 tenancies

A tenant who falls into one of the excluded categories will not be an excluded occupier if:

  • her/his 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.

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.

[1] s.3A Protection From Eviction Act 1977, as amended.

[2] s.3A(4) and s.3A(5) Protection from Eviction Act 1977.

[3] para 10, Sch. 1 Housing Act 1988; s.12 Rent Act 1977.

[4] s.3(2) Protection from Eviction Act 1977.

[5] Cooper v Tait (1984) 15 HLR 98, CA.

[6] s.3(3) Protection from Eviction Act 1977.

[7] s.3A(5) Protection from Eviction Act 1977 and s.113 Housing Act 1985, as amended by Sch.8 Civil Partnership Act 2004.

[8] s.3A(6) Protection from Eviction Act 1977.

[9] s.3A(7)(a) Protection from Eviction Act 1977.

[10] s.3A(7)(a) Protection from Eviction Act 1977.

[11] Polarpark Enterprises Inc v Allason [2007] EWHC 1088 (Ch).

[12] West Wiltshire DC v Snelgrove (1998) 30 HLR 57.

[13] s.7A Protection From Eviction Act 1977 as inserted by Sch.14 Immigration and Asylum Act 1999.

[14] s.622 Housing Act 1985.

[15] s.3A(8) Protection from Eviction Act 1977.

[16] s.3A(7D) Protection from Eviction Act 1977 inserted by s.40(5) Immigration Act 2016 (in force with effect from 1 December 2016).

[17] R (on the application of ZH and CN) v Newham LBC and Lewisham LBC and Secretary of State for Communities and Local Government [2014] UKSC 62; Desnousse v (1) Newham LBC (2) Paddington Churches HA (3) Veni Properties Ltd [2006] EWCA Civ 547; Mohamed v Manek and Kensington and Chelsea RLBC (1995) 27 HLR 439, CA; Huda v Redbridge LBC [2016] EWCA Civ 709.

[18] Desnousse v (1) Newham LBC (2) Paddington Churches HA (3) Veni Properties Ltd [2006] EWCA Civ 547.

[19] R (on the application of ZH and CN) v Newham LBC and Lewisham LBC and Secretary of State for Communities and Local Government [2014] UKSC 62.

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