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England | Start of a Tenancy (England) | Types of Tenancies (England)

Excluded license or tenancy? (A more comprehensive re-visit from a different angle please):

9 Nov 2021 | 2 comments

Excluded license or tenancy?

(A more comprehensive re-visit from a different angle):

Where Landlord (LL) is solo older female owner-occupier in a large 3 storey Victorian villa, keen to both provide excellent accommodation & to meet all legal requirements but also to maintain best protections again occasional rogue renters.  In reading your definitions, it appears each example below constitutes an excluded license.  For reassurance on specifics however, can you confirm how each of these particular & distinct scenarios will be defined?:

  1. ‘Granny flat’, 2nd floor/ attic apartment in LL’s home:
    1. private kitchen and bathroom;
    2. enjoys access to separate shared lounge downstairs;
    3. provided with laundry & cleaning services;
    4. not exclusive possession as LL requires regular access to roof/ loft space (only accessible through apartment), for most of year and LL provides services?
  2. Studio style apartment
    1. Room with en-suite private bathroom, kitchen sink & cupboards in room but no cooker/ cooking facilities
    2. separate kitchen shared with other lodger (for cooking) and with LL (for regular laundry & storage, occasional air-fryer use)
    3. separate shared lounge;
    4. provided with laundry & cleaning services;
    5. no exclusive possession as LL requires regular access to kitchen and provides services?
  3. Room in shared house
    1. Room with separate private bathroom (across communal hall), kitchen sink & cupboards in room but no cooker/ cooking facilities
    2. separate kitchen shared with other lodger (for cooking) and with LL (for regular laundry & storage, occasional air-fryer use)
    3. shared lounge;
    4. provided with laundry & cleaning services;
    5. no exclusive possession as LL requires regular access to kitchen and provides services?
  4. 1 or 2 bed caravan
    1. used as annexe & sited directly along wall of LL’s house, (front doors are 2m apart)
    2. private bathroom, kitchen sink & cupboards but no cooker/ cooking facilities
    3. separate kitchen (in house) is shared with other lodger (for cooking) and with LL (for regular laundry & storage, occasional air-fryer use)
    4. enjoys access to shared lounge (in house);
    5. provided with laundry & cleaning services;
    6. is there still no exclusive possession if LL provides cleaning & laundry services?

Answer

2 Comments

  1. guildy

    We’re not too interested in the “exclusive possession” element because it’s too complicated to prove. A hotel or bed and breakfast is clear but if you have a tenant who is occupying the premises as their only or principal home and it’s not a hotel/B&B, then more often than not an attempt to say they don’t have exclusive possession will be found as a sham to try to avoid it being a tenancy. If the supplying of services and cleaning is to the extent of a hotel then that would be fine (but you’re now likely operating as a hotel and not simply renting a room which brings in a whole set of other legislation).

    However, wether somebody is an excluded occupier or not is governed by legislation so easier to determine.

    In order to be an excluded occupier (lodger), the tenant must “share accommodation” with the landlord. This doesn’t include shared stairways, it must be true accommodation (kitchen, lounge etc.). If they don’t share accommodation, then it will be a separate dwelling and a contractual tenancy (where living in same building). But, if “accommodation” is shared with the landlord, they will be a lodger.

    We also don’t believe the simple ability to share is enough because it could again be seen as a sham if the offering to share is there purely to try to exclude them from being a tenant. If however, it’s absolutely genuine they can share accommodation with the landlord, then they will be a lodger.

    From your list, our view would only be that the letting of a bedroom will be a true lodger scenario and the others are borderline and not sure.

    The caravan example would almost certainly be an assured shorthold tenancy in our view.

    The legislation which determines whether somebody is an excluded occupier or not is here.

  2. bdixon

    Very comprehensive. Thank you

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