Eviction of excluded occupiers

Most residential occupiers can only be evicted if the landlord obtains a possession order and enforces it via a warrant or writ of possession.

Some tenants and licensees can be peaceably evicted without a court order. They are referred to as excluded occupiers.

The categories of excluded occupier include people who share living accommodation with a resident landlord and homeless applicants in interim accommodation.

A landlord must serve notice before they can evict a periodic occupier. Fixed term occupiers can only be evicted once the term has ended, unless the agreement allows for it to be ended early through a break clause or forfeiture clause.

Excluded occupiers who have a periodic (rolling) agreement are entitled to notice before they can be evicted.

If the occupier has a written agreement that specifies a notice period, then the landlord must give notice in line with the agreement otherwise the notice is invalid and does not end the agreement.

Common law rules apply if there is no clause about notice or no written agreement. The rules are different depending on whether the occupier has a tenancy or a licence.

Ending a periodic excluded tenancy

If the agreement does not specify a notice period then the period of notice must be the same as the rental period, for example a week’s notice for a weekly tenancy.[1] The notice must expire on the first or last day of a period of the tenancy. [2]

There is no prescribed form and the notice does not to be in writing unless specified in the agreement.[3]

Ending a periodic excluded licence

If the agreement does not specify a notice period, then the landlord must give reasonable notice.[4] The notice does not need to be in writing and can be given verbally.[5]

There is no legal definition of a reasonable period. What period of notice is reasonable depends on the individual circumstances of each case. Relevant factors can include

• length of time the occupier has been living in the accommodation

• periods for which rent is payable

• occupier's conduct

A 28 day notice, equivalent to a statutory notice to quit, can be sufficient in many circumstances. A shorter or longer notice can also be appropriate. In one case the court held that four months would be a reasonable period of notice for a licensee in a hotel described as a long term occupier.[6]

The notice ends the licence immediately on service, but the landlord cannot act on it until a reasonable period of time has passed, even if the contract specifies a shorter notice period.[7]

In the event of a dispute, the licensee would have to show that the period of notice was unreasonably short. Enforcing this may be difficult, as it is likely that a reasonable period would have passed by the time the occupier could take the dispute to court.

Where the occupier shares living accommodation with a resident landlord, the court may be reluctant to order that the landlord allows the excluded occupier to continue living in their landlord's home.

If the occupier has a fixed term contract, they are entitled to remain in the premises during the fixed term.

The landlord can only evict the occupier before the end of the fixed term if there is a break clause allowing them to do so. These types of clause specify how a tenancy or licence can be terminated early. The landlord must follow any requirements about notice period in the agreement otherwise the notice is invalid and the occupier can remain in the property until the end of the fixed term, or until a valid notice under the break clause is given.

At the end of a fixed term, the excluded occupier’s right to occupy ends and the landlord is entitled to immediate possession without needing to serve notice.

An assured tenancy, Rent Act tenancy or other private tenancy can become an excluded tenancy if the Home Office serves notice on the landlord that none of the occupiers have a right to rent.

The landlord can then serve 28 days’ notice in a prescribed form to end the tenancy. On expiry the landlord can take possession of the property without a court order.[8] They can also apply for permission to enforce it through a writ of possession issued in the High Court.

The landlord can peaceably evict the occupier once the excluded tenancy or licence ends. For example, once a notice has expired, the landlord can change the locks while the occupier is out.

The landlord may be committing an offence if they use violence. It is an offence for any person 'without lawful authority' to use violence against someone else to secure entry to premises where there is someone present opposed to entry.[9] This includes violence against property and could cover forcing open a door or window if the perpetrator knows there is someone in the premises opposed to entry.[10]