Here is a question to the blog clinic from Richard, whose Mother is a lodger landlord.
Our mother is a widow and landlord with two lodgers in her home. Both lodgers have basic protection occupier status. One has lived there for about 30 years, and the other for about 5 years. Until recently, our mother lived in the home but sadly is critically ill in hospital and has been there for the past two months.
A recent medical assessment has advised the family that our mother requires 24-hour nursing care, which would be best provided in a nursing home. We have decided to pursue this route as it is in her best interests and for her safety. We expect her to move into care within the next week, and this will be a permanent move.
We will have to self-fund the care, but Mum’s savings are limited. Consequently, the family home may have to be sold to fund her care within a 6-12 months period.
We have decided to vacate the family home and serve a ‘notice to quit’ to the lodgers with 60 days’ notice, which is beyond the 1 month in their agreements. In the ‘notice to quit’ letter, we intend to provide an explanation of the situation and will attempt to discuss it with them when serving the notice. They are not aware of the circumstances at the moment.
Given that our mother will be moving into care permanently very soon, a key concern is at what point do the lodgers become tenants, and how long do we have to serve the notice? Also, given that the lodgers have lived in the home for so long, do they have any other rights, which may make it difficult for us to remove them from the home?
Answer
If someone rents a room in their landlord’s home, they will normally have a residential license rather than a tenancy, and this will be the case even if they have lived there for a long time.
They will not obtain extra rights simply because they have been a lodger for many years. Neither would they obtain a tenancy due to their landlord’s temporary absences such as a stay in hospital or long holiday.
However, if they do not share living accommodation things may be more difficult.
If the lodgers share living accommodation with the landlord
In this case, even if they have a tenancy, the landlord is able to evict them without first getting a court order.
This is provided for in section 3A of the Protection from Eviction Act 1977, which sets out exceptions to the general rule that residential occupiers can only be evicted against their will by first obtaining a court order for possession.
One of the exceptions set out in section 3A is where living accommodation is shared with the landlord or a member of the landlord’s family. In other words, lodgers! But the rule will apply to tenants also – so long as they share living accommodation.
The act, however, says that the landlord or a member of their family should be residing in the property as their home at the time the license or tenancy comes to an end. So I would suggest you lose no time in getting the notice served.
Once their license has been terminated, you have the right to evict the lodger without a court order, although this should only be done as a last resort.
You will find guidance on drafting and serving notices on my Lodger Landlord website, which you will find here. The site also has guidance on evicting lodgers who refuse to leave. Although hopefully, that will not be necessary.
So far as your notice letter is concerned, it would be best to make it fairly short. Do not go into a lot of detail about the circumstances and simply say that your mother’s condition requires you to sell the property so she can be given 24-hour care. Be careful not to word the letter in a way that would indicate that she has already permanently moved out.
There is no specific law or, indeed, case law that I am aware of that sets out precisely when a lodger license will become an assured shorthold tenancy, and it is generally taken as being when the landlord moves out permanently. I think a ‘grace period’ would probably be implied in law for you to give notice in these circumstances, but you should lose no time.
If the lodgers are unable to move out at the end of their notice period and ask for extra time, you should make it clear (in writing) their notice period is extended for a limited time only and that you require them to vacate.
A word of warning. When you put the property up for sale, do not exchange contracts until both lodgers have moved out and you have vacant possession. Just in case they dig their heels in, and refuse to go after exchange, which could make you liable to pay compensation to the purchaser.
If the lodger’s accommodation was self-contained
If the lodgers do not share any living accommodation with your mother, then the situation will be different. Section 3A of the Protection from Eviction Act will not apply, and you will need to evict them through the courts if they refuse to vacate.
Note that the shared accommodation must be ‘proper’ living accommodation such as a kitchen, bathroom or living room – corridors and cupboards (for example) do not count.
If they did not share living accommodation, then I think it would be best for you to consult solicitors now and get them to serve the notices to quit and act on your behalf. It will probably prove cheaper for you in the long run.
The solicitors should be specialist landlord and tenant solicitors rather than your local solicitor, who may have dealt with any conveyancing, divorce or PI claim work in the past.
We have a telephone advice service here where you can book a preliminary 30-minute advice call with our of our panel solicitors, who are all specialists in this work.