A guide to excluded occupiers and evictions
The default position for an occupier under the Protection from Eviction Act 1977 is that they cannot be evicted without a court order in England and Wales. However, there are many situations where this basic protection is excluded by law. These “excluded occupiers” can be automatically evicted either once the written agreement comes to an end or the landlord’s permission to live in the property has ended.
Most of the scenarios are set out in the 1977 Act.
When is an occupier deemed excluded?
Resident Landlord
Anyone who shares a property with the landlord and uses the same facilities as the landlord is deemed an excluded occupier. To enter this category, the occupier must share a kitchen, living room or bathroom with the landlord. Storage areas, stairways and hallways are not applicable. The landlord must be using the property as their only or principal home from start to finish of the tenancy agreement. If the landlord moves out and does not intend to return, a tenancy may arise - which can apply even if the landlord decides to move back. Lodgers who rent a room in the landlord's main home are excluded occupiers and will enter into a lodger agreement with the landlord. A lodger licence is not an assured shorthold tenancy as the lodger does not have exclusive possession of the property.
Resident Family of Landlord
As above, the occupier is deemed excluded if they share accommodation with the landlord’s family member. The meaning of “family” is defined under Section 113 of the Housing Act 1985 and includes: spouses, civil partners, children, parents, grandparents, grandchildren, brothers, sisters, nieces, nephews, uncles and aunts. The property must be the family member’s principal home for the duration of the agreement. Not only must the family member have occupied the property, but so must the landlord, at least in part.
Trespassers
An occupier’s license or tenancy is excluded if it is granted as an interim measure to someone who entered the property as a trespasser. A common instance is where a landlord discovers a squatter in their premises but allows them to stay on a temporary basis, receiving a weekly fee or rent until they require for possession.
Holiday Lets
Licences and tenancies which are granted for the purpose and duration of a holiday fall into the excluded category under the 1977 Act.
Rent-Free Accommodation
This encompasses any tenancy or licence not granted in exchange for money or money’s worth. In other words, where the occupier is not obliged to pay rent or perform some form of service. Indeed, this would include an occupier living with relatives.
“Money’s worth” in this context is defined in the case law. Polarpark Enterprises Inc v Allason states that an undertaking by the occupier to keep a property repaired and insured counts as money’s worth, bringing the agreement outside the category. West Wiltshire DC v Snelgrove however states that an agreement to pay nothing but fuel and food bills does not count as money’s worth. So the degree of maintenance in the agreement matters for the purposes of establishing rent-free accommodation.
Accommodation for Asylum Seekers
Any accommodation provided under the 1999 Immigration and Asylum Act is excluded. This covers instances where the Home Office facilitates housing for those who have been released from detention, or for those who have been rejected from asylum and their dependents. This includes accommodation arranged by local governments with private landlords.
Public Sector Hostel Licences
A “hostel” is defined in the Housing Act 1985 as an accommodation with non-separate housing arrangements, and where either board and/or facilities for the preparation of food is provided for residents. The public bodies which can issue these excluded licences include local authorities, development corporations, Housing Action Trusts, private registered providers of social housing, charitable housing trusts, and other public bodies occasionally authorised by the Home Office to grant licences in hostels.
Home Office “No right to rent” Notices
Excluded tenancies/licences arise in instances where the Home Office has given one or more notices in writing to the landlord to the effect of identifying the occupier of the premises, and stating that the occupier or occupiers are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.
Under the Immigration Act 2014, an assured tenancy, Rent Act protected tenancy or tenancy with basic protection will convert to an excluded tenancy in these circumstances.
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Accommodation Licensed to Homeless Applicants
The 1996 Housing Act places a duty on the local housing authority to secure accommodation for those who are homeless, eligible for assistance and have a priority need. Additionally, where someone is deemed homeless and eligible for assistance, but is homeless intentionally, there is also a duty to secure available accommodation for a reasonable amount of time to allow them to find accommodation themselves.
Case law in Huda v Redbridge LBC has established that these tenancies and licences are not subject to basic protection under the Protection from Eviction Act 1977.
Any exceptions to these scenarios?
The tenancy will not be excluded from basic protection if the agreement has been entered into before the 15 January 1989 (the date the 1977 Act became enforceable) and there has been no rent increase or substantial variation of the terms of the tenancy on or after that date.
Excluded Occupiers do not have the benefit of the 1977 Act’s provisions, and so can be evicted with reasonable notice and a court order.
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