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Here is a question to the blog clinic from Ian (not his real name), who is a lodger landlord.

I am a live-in landlord renting for the first time. I gave my lodger an AST contract to sign by mistake. I realise now it is not legal, so, would the lodger be considered an excluded tenant or a lodger?

The person is being very difficult as I said I wouldn’t renew the AST contract after the fixed period. I want to evict the lodger/excluded tenant, but I just realised I had to show him a gas certificate before he moved into the property (I didn’t.) I am obtaining one tomorrow, but I am scared if he realises that he could talk to the council and take legal action? Are landlords often prosecuted due to a late issue of a gas certificate?

Answer

Although you may have given your lodger a document to sign which said it was an assured shorthold tenancy, in actual fact, it can’t be an AST as ASTs cannot exist where the landlord lives on the premises.

I suspect that, notwithstanding the form of the agreement, this will not be a tenancy at all but will be a normal lodger arrangement ie a residential license. However, even if it could be deemed to be a tenancy, this will not affect your rights regarding eviction as per the Protection from Eviction Act 1977.

Lodger landlord eviction rights

The Protection from Eviction Act says that in most cases, landlords cannot recover possession without getting a Court Order first.

However, for certain ‘excluded tenancies and licenses’, this is not necessary. The excluded tenancies and licenses are set out in section 3A, which provides in subsection (2)

(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 (5) goes on to say

“accommodation” includes neither an area used for storage nor a staircase, passage, corridor or other means of access;

So you must share some sort of ‘proper’ living accommodation such as a kitchen, bathroom and sitting room.

Assuming this is the case, then you do not need to go to court to evict, and it does not matter whether your lodger has a license or tenancy – it is whether or not they share living accommodation with you, which is important.

Gas Safety Certificates

You do need to provide gas safety certificates to lodgers, but failure to do so will not affect your right to evict, as it does for ASTs. So you do not need to worry about this.

As regards prosecution, if you now have a GSC, I think it is most unlikely that you would be prosecuted, although technically, it is possible.

Further information

For more information about lodgers, including detailed guidance on recovering possession from lodgers, see my Lodger Landlord website here.

Guidance on serving notice on lodgers and an eviction procedure you can use are described in the Ending Lodger Agreements section.

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