My rights to evict a lodger?

Reply to the comment left by "david manifold" at "27/06/2014 - 15:13":

Thanks for this, David.

Lodgers and excluded tenants are excluded under Section 3A(2) of the Protection from Eviction Act 1977 - so they don't need 2 months notice and though a court order is required for an excluded tenant, it isn't for a lodger.

HOWEVER, having said that, lodgers have different protection - that offered under contract law - the contract can be a very casual word of mouth agreement between two mates - it's still a contract to let if money is changing hands. The courts apply the "reasonable person's" standard, which means that the contract can only be terminated without due notice in the case of unreasonable behaviour. I invited Giles Peake, solicitor with Anthony Gold to read this post and he agrees with me (he tweets as @nearlylegal) - please feel free to Tweet him if you still disagree.

BTW, he also wants to point out to other posters on this thread that you can't get Legal Aid for a restraining order.

Reply to the comment left by "Mandy Thomson" at "27/06/2014 - 15:31":

I would be very interested to see an example in law where a lodgers rights trump a home owners rights in his/her own when the home owner is responsible for all the bills and security of doors. A stated case would make interesting reading. Can you or your solicitor supply an example? Certainly if I thought this was the case I would not take one in and I am sure others wouldn't either and the result would increase the numbers of homelessness. A lodger who doesn't leave becomes a squatter. In any event, arrears or abuse would clearly breach any reasonable condition. I would agree however that a lodgers personal effects should be protected at all times....not just dumped in a bag. That is neither fair nor reasonable and illegal. They should be secured and allowed to be collected at a reasonable time. Also a landlord who takes in a lodger has a duty of care to ensure they do their safety checks, such as electrical safety and annual gas checks, where applicable as they are supplying a service.

Reply to the comment left by "david manifold" at "27/06/2014 - 15:50":

A lodger who refuses to leave is a trespasser, not a squatter.

Thanks you to Mandy for seeking clarification of legal aid funding not being applicable for restraining orders. I learn something new every day and was surprised to hear this.
.

Reply to the comment left by "david manifold" at "27/06/2014 - 15:50":

No one is saying lodger's rights trump home owner's rights - typically, a lodger would have a month's notice to leave, after which they would be trespassing - the notice period may be shorter than that, for example if rent is paid weekly - Google "lodger notice periods".

Where unreasonable behaviour is concerned and a live in landlord threw a lodger out with less notice than they're contractually entitled to (as the lodger is in breach of the contract), a landlord could be taken to court by a disgruntled lodger, who could then claim the rent for the remainder of the notice period plus any expenses - so any live in landlord in this situation would be advised to gather as much evidence of the unreasonable behaviour as possible (keep a diary, photos, witnesses etc). However, in practice, very few lodgers would bother going to court, as indeed many tenants don't, in part because they're often unaware of their rights.

I researched all of this very thoroughly for a year before I published my lodger/landlord advice website. I studied people such as Tessa Shepperson very closely and looked into cases such as Street v Mountford. This was after being both a lodger, a live in landlord plus a regular landlord myself.

I should like to point out for the record that Giles Peake is not my solictor...

Thank you everyone; I now feel more confident that I can lock him out and regain my home. My worry was that he would sue me for illegally evicting him but I gather from all the comments that I am indeed within my rights. I will let you know how this progresses.
vivien

Reply to the comment left by "Vivien Gudgeon" at "28/06/2014 - 14:42":

Update, he has shut himself in the room and does not go out unless he knows I'm at work. This makes it very hard to lock him out. He is avoiding me completely and will not pick up any letters or notes I leave. The smell of stale cigarettes and booze from the room is revolting; he still sneaks out to the shop when I'm out but has not paid any more rent.
Vivien

That's dreadful! You'd think he'd at least pay the rent and behave himself, if he's situation really was desperate...

Firstly, arrange a day off work, then set up an incident with the police force for your area, preferably online (as it's much more likely to be dealt with by someone with a knowledge of landlord and tenant issues). If you've less time, use the 101 number.

Can you also arrange for someone to be there with you on that day, and change the locks - without having to call a locksmith, as it will have to be done quickly while the trespasser is out and you won't be able to book an appointment? Can you bolt your door to exclude someone who has a key?

Make it clear to the police that the lodger should have been gone by a specific date (i.e. that in your original notice). Be prepared to show the police proof that you're the householder, such as your own mortgage or tenancy agreement, or failing that, utility or council tax bills in your name) and copies of the lodger Notice and Agreement.

The police are not expected to be knowledgeable about landlord and tenant law, so you may also need to make it clear that your former lodger did not own or rent the property as a tenant and explain that your lodger shared living space with you and as such was a licensee, with only the right to reside granted by their contract with you and therefore S1(2) Protection from Eviction Act 1977 doesn't apply.

A useful analogy is a troublesome hotel guest - which is based on very similar licensing legislation.

Tell the police that your lodger IS NOW A TRESPASSER as due notice has long since expired.

Your right to evict a licensee without a court order is contained in section 3A(2) of the Protection from Eviction Act 1977.

However, the police might still refuse to attend the eviction, and might even tell you it's a civil matter or to seek legal advice, as it's not an area they typically feel confident about involving themselves in - in which case, all you can do is to ask a friend to be there and change the locks that day after the lodger has gone out.

On the day, let the "lodger" (trespasser) think you've gone to work as normal.

.@metpoliceuk lady has problem ex lodger - now trespasser in her home - can she get police to help evict? http://t.co/0PEwPDLagx— Mandy Thomson (@lodgersite) June 29, 2014

For clarity, I think that Mandy is right that any notice period will be governed by the lodger's agreement, and that will be cover by the unfair terms regulations. Where the lodger has acted in serious breach - being threatening, for example - then very short notice, say 24 hours, would be reasonable.

There is no legal or statutory retirement for a notice period for a lodger and no statutory protection for lodgers from being evicted (the comment of mine that Mandy linked to was about residential licensees, not lodgers, where the protection from eviction act does apply).

As far as I can see, the original questioner is well within her rights to exclude the lodger from the property, and, if they refuse to leave, to seek help from the police. That said, the police rarely have a clue about these matters, so may need careful guidance.

Giles Peaker.

He has just come out of his room to turn off the water, I have a flooding boiler-plumber tomorrow, more expense!
Mark claims he only owes a week, that he has helped fix things in the house, though mostly unasked for, he insisted, saying it was therapy (he's an alcoholic) even when I told him no. He is now using this as a sort of blackmail, he thinks he only owes one week rent but according to the spreadsheet I have kept he owes £370 to date. When I was in hospital with pneumonia he didn't pay rent for the 2 weeks I was in, my aunt can verify this. He claims it was only one he missed, he truly believes what he says, he claims I've damaged a pair of £160 glasses and it's not possible to replace just one lens in Armani (?)glasses; I'd done the black bag thing but he came in and stopped me. He said he would pay in rent tomorrow but I've told him just to keep it towards the glasses and I'd deduct the rest from his arrears, that's when he said he didn't owe me. He is accusing me of making him starve as he cannot use the kitchen, again, not true, I'm at work often enough anyway. I have even written in the last letter of notice that he is free to use the kitchen and bathroom till he leaves. Regardless of this, his lies, theft of wine, and threats of damage surely gives me the right to ask him to go. I told him he had overrun 3 or 4 notices to quit, he went back to his room.
If anyone was to listen to him they would think I was the cruellest woman alive, he is so plausible. I really can't cope any more. I do worry that he might try to sue with his sob story, however untrue.
Can someone tell me, all the complaints apart,, am I still within my rights to lock him out even if he says he doesn't owe me the arrears I say he does and are my letters and words enough? I fear he will fight this.
Sorry for rambling, I'm just so upset.
Vivien