Lodger’s room is almost self contained?

Thank you for the above comments.

This is on the government Rent a Room page:
https://www.gov.uk/rent-room-in-your-home/your-lodgers-tenancy-type
Your lodger has basic protection
Your lodger is likely to be an occupier with basic protection if:
* they live in your home
* they do not share any living space with you or your family
If the government openly defines she is a lodger, and we are resident landlords, does she has right to a tenancy?

Reply to the comment left by H J at 27/01/2023 - 16:10
The links you are providing are very basic there is a lot of case law and other legal documentation surrounding the definition and difference between lodger and tenant. A true lodger has very little protection and can be removed very easily. A tenant or someone who doesn't share facilities and a court decides is a lodger not a tenant will have basic protection, but if a court decides they are a tenant they will have more protection.
Maybe negotiate with the person living with you move out, maybe they will just leave, and then if you want another person, make sure they have equal rights to shared facilities so there is no risk to them becoming protected occupiers(tenants)

If this is determined to be a tenancy, bear in mind that you will also be due to pay some capital gains tax when you eventually sell your house.

BR or HJ, you have been advised of the possible issue with this letting, and have been advised to seek proper legal advice, as the interpretation of the law can be complex, but you are obviously going to ignore that and interpret whatever online guidance you can find that supports your own view. You are of course free to do this, it is at your own risk.

You will no doubt proceed to do whatever you initially intended to do, regardless of the advice given, and you may be lucky and not be challenged in court by your tenant/lodger.

However, if you do ever decide to re-let your spare room, I would suggest that you remove the cooking appliances so that it cannot be argued that there is any possibility of it being self-contained, as the only cooking facilities would then be in the shared kitchen.

I don't think there's any argument that you have a lodger and not a tenant, because she lives in your house. The only question is whether she is an excluded occupier or an occupier with basic protection.

An occupier with basic protection is like a tenant, but they have less rights because they share the building with their landlord.

If she has basic protection then you will have to get a court order to evict her if she chooses not to leave and you can't simply change the locks as you could if she were an excluded occupier.

The arguments for an excluded occupier as I see it is that she's in your house rather than a separate flat in the building. A separate flat would generally mean separate council tax obligations and I don't believe a council looking at your set up would consider her room separately taxable as they would a self-contained, independent habitation.

Although she has a separate entrance, she also presumably has access to your main living space at will. Unless you have locks which prevent her access you are relying on her to abide by your agreement, but your part of your home isn't locked off to her in theory so isn't a separate flat(?) Does she have a front door key?

You mention that you offer a cleaning service. Is this stated in in your agreement, and is it included in the price of the room?

I assume your lodger’s room is ensuite and she doesn’t use the family bathroom, but you do mention that cooking facilities in her room are limited, and she has ‘with prior arrangement’ the use of the oven in your kitchen. I don’t think it is relevant that she has chosen not to avail herself of this, or that she must prearrange this, it is still a shared cooking facility which she can use and is included in her rent. No lodger living in a separate flat in the same building as the landlord would expect to use the landlords oven.

"A lodger is an individual who occupies a room in another person’s home; he or she has shared use of facilities such as the kitchen and bathroom and traditionally is provided with certain services… such as… having the room cleaned regularly (see Marchant v Charters [1977]). The provision for these services is usually included in the fee paid for the accommodation.” P24 2.29

Are there any restrictions on your lodger’s actions in your agreement? Are there any restrictions on guests for example? “It is also common for the owner to impose further restrictions on the lodger which interfere with the lodger’s occupancy of the room. For example, the lodger may be permitted guests only between certain hours or may not be permitted guest without the prior permission of the owner.” P24 2.29

Whilst I can see an argument for her having basic protection, I’m tending to come down on the other side, now you’ve provided more information. These situations are not always obviously one thing or the other, hence the number of court cases that have been argued on exactly this point.

Whilst as a general rule landlords don't hold Shelter in high regard, it could be useful to ask for their feedback on your personal situation. If they agree that your lodger doesn't have basic protection then I would suggest that you are safe to obtain peaceful possession under their guidelines. Just keep a record of your conversation, name, date notes etc to cover your back in case of a challenge and to show that you sought suitable advice before acting.

Link to Shelter's advice on eviction of excluded occupiers:-
https://england.shelter.org.uk/housing_advice/eviction/eviction_of_lodgers_and_other_excluded_occupiers

Link to Shelter's advice on eviction of occupiers with basic protection:-
https://england.shelter.org.uk/housing_advice/private_renting/occupiers_with_basic_protection

The excerpts provided are from Garner and Frith’s A Practical Approach to Landlord and Tenant, Eighth edition; Chapter 2 The Distinction Between a Lease and a Licence.

If you share any living accommodation with the lodger, (ie use of kitchen, bathroom, corridors etc) then the lodger would likely be a licensee and you would not need a court order. Whether you can claim this may depend on the wording of the agreement and what happens in practice. Have they ever used the kitchen? Do you have evidence? Do you clean the floor in their room? If you are still in doubt then put in a call to a specialist housing solicitor. The initial call should be free.