Lodger vs tenancy agreement

In this week’s blog we explore the difference between a tenant and a lodger and why it’s important to know the difference between a lodger agreement and tenancy agreement. The importance of getting this distinction right when you start renting can have consequences if you get it wrong.

What is the difference between a tenancy and a licence

A tenancy is a legal interest in land for a period of time. In other words a tenant has control of land for a certain period. In contrast, a licence is a personal permission for someone to occupy accommodation or land. It does not give the licensee a legal interest in (or control of) the land. Without the licence the occupier would be a trespasser.

Why does it matter

Exclusive possession

The most important distinction is in relation to exclusive possession. In a tenancy the occupier is granted exclusive use of at least one room, while a lodger does not have exclusive possession.

If, for example, the occupier has their own room and the landlord does not have the right under the agreement to enter it without permission, the letting would probably be a tenancy. If the agreement includes some form of attendance or service which requires the landlord (or someone working for them) unrestricted access to the occupier’s room, the letting would be a licence to occupy, ie lodging agreement. If the occupier has to share his or her room (or all of his or her rooms, if more than one) with someone he or she did not choose, the letting would be a licence.

To be a tenancy, the letting must be for a particular room (or rooms) – that is, without you being able to move him or her around. It can either be a room rental where the tenant has his or her own room and shares the common areas, or a tenancy agreement for a flat or a house, where they rent out the entire property. In either case they have exclusive possession of that room or property. 

Eviction

Generally, it is easier to evict lodgers than tenants.

Your lodger agreement will typically state how much notice you should give. If the agreement does not specify how much notice is required, you typically need to give the lodger ‘reasonable notice’ to quit. Usually ‘reasonable notice’ means the length of the rental payment period – so if your lodger pays rent monthly, you should typically give 1 month’s notice. 

In contrast, if you have a tenancy agreement, the eviction process takes longer and if the tenant refuses to leave at the end of the notice period, you will need to start court action in order to evict them. 

Another important difference is that if your lodger doesn’t leave at the end of the notice period, you don’t generally need a court order to evict them. You may be able to change the locks on the lodger’s room, even if they’ve left their belongings there. However, you must take reasonable care of their belongings and contact them to make arrangements to collect them within a reasonable time. 

However, with a tenancy, you cannot forcefully evict them from the property. This can only be done through a court order and the use of bailiffs.

Deposits

While all deposits for assured shorthold tenancies must be protected under one of the government backed tenancy deposit schemes, a lodger landlord does not need to protect the lodger’s deposit. 

For further information read Deposit protection schemes.

Written agreements

In order to be clear on the legal relationship you’re creating with your occupier, you should use the correct agreement.

If you have a lodger you can enter into a lodger agreement and give them your House rules for lodgers

If you have a tenancy, you can create a tenancy agreement for a house, a flat or a room in a shared flat. These are Assured shorthold tenancies, the most common type of tenancy agreement. 

Ask a lawyer if you have any questions about your legal rights or obligations. 

Janet Nikova
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