Landlord lives abroad. Lodger refuses to leave. Advice please!

Here is a question to the blog clinic fast track from Vera (not her real name) who is a landlord.

I am a live-in landlady and I am experiencing problems with a lodger. I felt forced to give him notice because of his anti-social behaviour during the pandemic. The other lodgers feel threatened by his behaviour, the cleaner that works for me also complained. Especially one lodger who has an autoimmune disease decided to move out because of his behaviour.

I have sought advice at the Tower hamlet housing service. I have been collaborative, but I feel not listened to by the service, harassed by the lodger’s accusation and by the way the situation has been handled by the housing advisor.

I gave the lodger one month notice and extended it to 5 weeks, as the lodger is refusing to move out and to communicate with me. He also claims that because he has never met me in person I am not a live-in landlady. I made him an excluded tenancy agreement, room only, which we both signed. I also provide lodgers with services (eg. cleaner, fixer, British Gas home care, and insurance for repairmen). 

The agreement had a fixed term of six months, after which he didn’t ask for a renewal. He moved in during the pandemic in September 2020, and the pandemic is the reason why I have never met him. He was made aware of my situation.

The property has been my home since 2010. I am temporarily out of the country for family and health reasons, and I haven’t been able to go back home to my property and the UK since the end of January 2020.

I had some health issues shortly before the pandemic started ( a miscarriage) while I was abroad and fortunately became pregnant in March 2020. Because of the health risk that covid entails, and the fact that I am a new mum and that my partner does not live in the UK, it has been for me very difficult to go back home.

This does not mean that my property is not my home. I am currently organising with a migration solicitor to prepare the right documents for my partner and my son to go with me to the UK. I would like to know what my rights are in this situation.

Answer

The things to consider here are

• whether the occupier has a tenancy or is a lodger and
• whether you can be treated as a resident landlord for the purposes of the Protection from Eviction Act 1977.  

Probably the most important issue is whether or not you can rely on the Protection from Eviction act.  The reason for this is that live-in landlords who share living accommodation with their tenants do not need to get a Court Order for possession.  Even if the occupier has a tenancy.  

So what does the Protection from Eviction Act say about this?

Occupiers rights under the Protection from Eviction Act.

• Section 1 says that it will be a criminal offence to ‘unlawfully’ deprive any occupier of residential premises (whether they are a licensee or have a tenancy) unless you have good reason to believe that they have vacated. 
• Section 2 says that the ‘right of re-entry’ found in many forfeiture clauses, can only now be done by obtaining a court order 
• Section 3 specifically says that landlords have to get a court order for possession if they want to evict anyone in their property – regardless of whether that person is a tenant or a licensee.

This rule is mitigated however by section 3A which says that for certain types of occupation you can evict without having to get a court order first. 

These are known as ‘excluded tenancies and licensees’.  They include lodgers, holiday lets and where people are allowed to stay for free.

So does this lodger exclusion apply to you?  Let’s take a look and see what the act says about it:

(2) A tenancy or licence is excluded if—

(a) under its terms the occupier shares any accommodation with the landlord or licensor; and
(b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

Subsection 3 says that a similar rule will apply if the landlords family had been occupying the property rather than the landlord.  However, I don’t think this applies to you as you have not mentioned any family members.

Subsequent clauses make it clear that sharing accommodation means actual living rooms not things like an area used for storage nor a staircase, passage, corridor or other means of access;

Your case

The critical question here is, were you living at the property at the time you rented the room to this lodger?  You say have not lived in the property since January 2020 and the occupier moved into his room in September 2020.  So obviously not.  

In which case, I am afraid that whatever his occupation type, you will need to get a court order for possession if you want this person to leave.  The fact that he signed an ‘excluded tenancy agreement’ will not change this.  

You will therefore need to bring possession proceedings through the courts. 

Tenancy or license?

The procedure you use to evict this occupier will depend on whether he has a tenancy or a license.  In my view he will have a tenancy UNLESS his agreement provides for the cleaner (and your other employees) to go in and clean his room as of right AND this actually happens.  So, if your cleaner only ever cleans the common parts of the property and never goes into his room, he will have a tenancy.

Posts on this blog that explain this can be found here and here.

So you will need to speak to the cleaner and find out what actually happens.  You need to get this right as if you bring legal proceedings for possession on the wrong basis, they will just be chucked out by the Judge (and you may have to pay the occupiers legal fees).

What to do next

• If the occupier has a license you will need to serve a Notice to Quit and then issue proceedings on the basis that he is occupying the property unauthorised after his license has been terminated.
• If the occupier has a tenancy, it will probably be an assured shorthold tenancy.  You will need to serve a section 21 notice and then issue proceeding after the notice period has expired.

I would strongly advise in this case that you use a firm of solicitors who specialise in this area of law – this is particularly important as you live abroad.

Two firms I would recommend are Landlord Action and JMW Solicitors.  Note that Landlord Law members can instruct these firms online via our special forms and get a discount.  

And finally

You will probably feel this is unfair as the property is ‘your home’.  However, the exceptions to the general rule requiring landlords to get a court order for possession are strictly defined.  As regards the lodger exception, it is specifically aimed at people who are actually sharing living accommodation with the occupier.  

The reason being that in these circumstances, where you have someone actually in your own home, sharing living space with you, it is unreasonable to expect you to go to court (provided you comply with the terms of the lodger’s contract).  

However in your case, you have been living out of the country for over a year (and more particularly, during the entire period this person has been living there), so this exception is not available to you.  The fact that it is ‘your home’ is not relevant if you are not actually living there.  So far as he is concerned you are not a ‘live-in’ landlord.

You are in the same position as other property owners, such as people working in the Foreign Office or the military who are posted abroad, who rent out their property while they are away.  Where in almost all cases the occupier will have an assured shorthold tenancy.