Tenant or lodger?

A case study on tenancy status and the right to a court order when tenant and landlord live in the same property.

Resident landlords

In a dispute between a landlord and occupier, understanding the occupier's status is key to advising them about the best way to proceed.

Sometimes the occupier's status is clear. For example, someone who lives in a housing association flat is likely to have a tenancy agreement that sets out their tenancy type. Other times the occupier's status is less clear. This is often the case with landlords who share or occupy part of the premises.

The newly resident landlord

A tenant (let's call her Jane) lived in a shared house with several other tenants. They each had a tenancy agreement for their own room and shared a kitchen and bathroom.

After a year or so, the landlord got in touch to say she was returning from abroad and intended to move back in. The landlord occupied one of the spare rooms. She did not return alone, instead bringing no fewer than ten cats with her. The cats proceeded to make use of the premises how they pleased, including sleeping on kitchen worktops and walking over the sink.

Unsurprisingly, the tenants were unhappy with the situation. Jane got in touch to ask whether she had any right to challenge the landlord about the feline takeover.

The resident landlord exception

An occupier's housing rights are normally more limited if the person they rent from lives in the same property. This is known as having a resident landlord. The exception only applies to private tenants: of course, a local authority or housing association cannot live with its tenants.

There are two overlapping sets of rules that cover resident landlords. The best approach when advising someone like Jane is to work through each in turn. It is important to understand the nature of the living arrangements to apply the rules correctly. In particular, advisers should find out which parts of the building the occupier shares with their landlord.

Landlord in the building

The first applicable rules can be found in Schedule 3 Housing Act 1988. If a person's occupation arrangement meets these conditions, they can never have an assured or an assured shorthold tenancy. (There is a similar exception in the Rent Act 1977 for regulated tenants.)

Under the Housing Act 1988 a tenancy cannot be assured or assured shorthold if the landlord lives in the same building, unless it is in a purpose built block of flats. One example would be another flat in a converted house.

The landlord must live there as their only or principle home when the tenancy starts and during the tenancy without interruption.

The occupier would usually be covered by the Protection from Eviction Act 1977. That means the landlord would need a possession order to evict. This type of occupier is often referred to as having basic protection.

Shared living accommodation

The second set of rules is contained in section 3A Protection from Eviction Act 1977. A person is excluded from any protection under the Act if they share living accommodation with a resident landlord. Living accommodation includes a kitchen or bathroom, but not things like staircases or an entrance hall.

Most people will recognise this as a lodger arrangement, where one or more people rent a room from the main tenant or owner occupier.

The landlord must have been living in the premises as their only or principal home when the tenancy starts and when it comes to an end. It need not be without interruptions.

This type of occupier is not covered by the Protection from Eviction Act 1977. That means the landlord is not required to get a possession order to evict the occupier. This type of occupier is often referred to as an excluded occupier.

Applying the rules

In our scenario above, most of the conditions for an excluded occupier appear to be met. The landlord is resident in the same building, and they share living accommodation including the kitchen and bathroom.

Here, particular regard must be paid to timing. For the first exception (landlord in the same building), the landlord must have been living at the property throughout the tenancy. For the second exception (shared living accommodation), the landlord must have been living there when the agreement began and when it comes to an end.

This landlord moved in part way through the tenancy. They were not living in the property before the tenancy began, or throughout. This suggests the tenancy is likely to be assured or assured shorthold. It does not meet the criteria for exclusion from the Protection from Eviction Act (although that would only really be important if there was something stopping it from being assured or assured shorthold).

What if a new tenancy had been granted?

The landlord could have been resident from the beginning of the new agreement if they entered into a new tenancy with the tenant.

A new tenancy might be created if either the:

tenant signed a new agreement
landlord and tenant's actions were inconsistent with the existing tenancy continuing

Tenants with a joint tenancy of the whole property would not be obliged to let the landlord move in at all. One of the hallmarks of a tenancy is exclusive possession of the premises. If the tenants had allowed the landlord to move in and agreed to a lower rent in return, it might be viewed as an implied surrender of the existing tenancy and the start of a new one.

This wouldn't necessarily change the tenant's status. Schedule 3 Housing Act 1988 states that a tenant does not lose their assured or assured shorthold status if they accept a new tenancy or move to another part of the same building after a landlord has taken up residence.

Section 3A Protection from Eviction Act 1977 has no equivalent provision. But, that Act is the fallback option for people who do not already have assured or assured shorthold status. So for tenants, the lack of an equivalent provision has no consequence.

No change

In Jane's case then, the tenant's status would not change. The landlord moved in part way through the tenancy, which means neither set of rules on resident landlords applies. The tenant would remain an assured shorthold tenant.

And what about the cats?

If another tenant was causing a similar problem, they might be in breach of their tenancy agreement, in which case the aggrieved tenant could raise the issue with their landlord. That is a bit tricker when the landlord is causing the problem.

The right to quiet enjoyment is an implied term in residential tenancy agreements. That means the tenant has the right to use the premises in an ordinary fashion without unreasonable disturbance from the landlord. Allowing a dozen or so cats to roam untrammelled in the house might be seen to interfere with the tenant's enjoyment of the premises.

The legal recourse for breach of the covenant of quiet enjoyment would be a County Court claim to compel the landlord to rectify the breach, or pay damages, or both. Suing a housemate can create certain practical difficulties, not least if the housemate is also the owner or main tenant. If a resolution cannot be found through open dialogue, the tenant is probably best advised to consider their other options, including whether it would be easier to find somewhere else to live.

If this course of action means the tenant must leave a contract early, the landlord could claim there is still a rent liability. The tenant should keep all the evidence they can gather, in case they need to defend a claim for rent arrears in court in the future.

The departing landlord

What about the opposite scenario? A tenant has a resident landlord who stops living there as their only or principal home part way through the tenancy.

The first set of rules, covering a landlord in the same building, cease to apply if the landlord does not live in the property throughout the tenancy. The tenancy could become assured shorthold if the landlord stops living there and the other conditions are met (the tenant has exclusive possession of identifiable premises). A new agreement is not required.

The second set of rules, covering landlords who share living accommodation, apply if the landlord is resident when the occupation starts and when it ends. An agreement could move in and out of exclusion from the Protection from Eviction Act if the landlord left temporarily and then returned. This situation would arise if another factor meant the agreement could not constitute an assured or assured shorthold tenancy. For example, if the lack of exclusive possession meant it was a licence.

What if the landlord sells?

The resident landlord exception under the Housing Act 1988 continues to apply for 28 days after the property is sold. It can be extended to a maximum of six months if the new owner gives notice during the 28 days that they intend to move in. The landlord cannot give the occupier notice to quit until they have moved in.

The exclusion ceases to apply if the new landlord does not move in by the end of the 28 days or six months. The tenancy would automatically become an assured shorthold tenancy if the other conditions are met.

This rule does not apply to the second resident landlord exception. The agreement would cease to be excluded from the Protection from Eviction Act when the resident landlord stops sharing the living accommodation. It could become excluded again if the new owner moved in, as the requirement would be met at the beginning and the end of the agreement.

What if the landlord dies?

The resident landlord exception under the Housing Act 1988 continues to apply for up to two years after the death of the landlord. The person who has the authority to deal with the landlord's estate can give notice to quit during this time. This might be the executors of the will or someone with letters of administration if there is no will.

This does not apply to the resident landlord under the Protection from Eviction Act. Without a resident landlord sharing living accommodation, the agreement would stop being excluded from that Act. Anyone seeking to evict the occupier would need a court order to do so.