Serve Notice & Get Rid of Problem Lodger

NB this page contains some general legal information which is for guidance only and is not legal advice see - Disclaimer.

The advice on this page relates to England and Wales (though may be applicable to other countries where a lodger is a licencee as opposed to a tenant - but check legal sources applicable to your own country!) If the room let is in Scotland, please see the Shelter Scotland website . Or for Northern Ireland or Scotland, MyLawyer.

Under English Law, lodgers (letting a room, even an ensuite room) and even those who don't share a kitchen, bathroom or lounge with the live in landlord but still share a front door, stairs or hallway with them (excluded tenants, also known as occupiers with basic protection, non-assured tenants or contractual tenants) don't, by virtue of Section 3A(2) of the Protection From Eviction Act 1977 have the same rights to notice to terminate the agreement as tenants under an assured shorthold or assured tenancy agreement.

However, having said that, this does not mean that lodgers have no rights. A lodger's right to notice is contained in the licence or lodger Agreement - like any contract, this is subject to contract law. Any unfair terms contained in the lodger Agreement (for example, if it stated that the lodger is only entitled to one day's notice, but the lodger must give the landlord one month's notice) are not enforceable and are overridden by law.

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If no such Agreement exists, or it's a verbal Agreement that can't be easily proven, the notice rights will normally be based firstly on how often rent is paid and secondly on what is reasonable under the circumstances. A court will look at the lodger's behaviour (or the landlord's if it's the lodger who wants an early termination), how long the lodger has lived there, and whether the lodger could be expected to find alternative accommodation within that time - please see Lodger's notice periods which sets it out in detail.

NB notice can't normally be served by either party during a fixed term in the Agreement unless there has been a breach or both parties agree.

The usual notice period is a calendar month (particularly if the rent is paid monthly). If the rent is paid monthly, the notice should be dated as per the next rent due date at the latest, expiring on the day before the normal due date after that (e.g rent paid on 5th of each month - therefore, notice dated 5th January, expiring on 4th February, lodger should move out on or before 4th February). Similarly, if the rent is paid weekly, the notice can be a week, running from the due date and expiring the day before the next due date. However, unless the lodger is happy with a week's notice, a month would be a more reasonable time to find alternative accommodation.

To be fair to the lodger and to protect yourself against any legal claims by the lodger, I would advise any live in landlord to try to give a month's notice unless the lodger's behaviour is absolutely unacceptable - for example, violence, intimidation (including very hostile atmosphere) or vandalism.

Notice for excluded tenant

For an excluded tenant (a lodger who doesn't share living facilities with the landlord, although they may not have self contained accommodation), at least a calendar month's notice is necessary (unless a serious breach of the agreement or violence can be proved), and a Court Order must be obtained if eviction needs to be enforced. Should you need to enforce eviction, you can do this without a solicitor but you do need to know exactly what you're doing and be fully conversant with the relevant legislation. You need to complete court forms N5 and N119 (it's a good idea to also submit form N215 - certificate of service). Guidance on completing these forms is available for members of the Guild of Residential Landlords.

The National Landlord's Association (NLA) provides guidance to complete court forms and most matters relating to letting to tenants and lodgers via their Landlord Advice Line on 020 7840 8939 (Monday to Friday, 9:00am - 5:00pm) - you don't need to be a member to get advice, but you will need to purchase call credits from Membership first on 020 7840 8937.

Although the initial notice to quit can simply be served as a letter, provided it gives the date of the letting agreement and sets out the property and the landlord and tenant's full names, a template is available for members of certain landlord bodies such as the Guild of Residential Landlords. Failing that, a solicitor specialising in landlord and tenant legislation or a letting agent who belongs to a professional body such as ARLA may be willing to write and serve notice to quit for a fee.

If you do have to give less than a month's notice (whether lodger is a licencee or excluded tenant) gather as much evidence of the unacceptable behaviour as possible - keep a diary account of remarks, take photos and document damage and get witnesses if possible. It is unlikely, but possible that if the lodger doesn't owe any rent, and there's a history of grievances against you by the lodger, the lodger could take out a claim for damages in the small claims court.

As to what form the notice should take, while this can be verbal, it is always better to put this in writing - especially if there's any possibility that the lodger could dispute it. Also, I've come across plenty of situations where either party forgets exactly when the lodger is supposed to move, with wrangles over the lodger being owed a refund of rent in lieu of notice!

It could be emailed if your lodger simply rents a room (but not if they have their own cooking and bathroom facilities as they will be a tenant). If you email, ensure you get a read receipt. If you really believe the lodger is likely to deny receiving your notice, serve it in the form of a letter, which you deliver with a witness or post first class (ok, it sounds silly to post a letter to your own home, but if you don't, it could come down to the lodger's word against yours) and get a certificate of posting from the Post Office (signed for delivery can be refused whereas proof of delivery shows it was posted in good faith).

However, unless relations with your lodger have broken down to the point where you just don't speak at all, tell them politely first that you will need them to move out - don't simply serve the notice! You can make up an excuse such as a relation visiting long term from abroad - but only if the lodger doesn't know you well enough to see that this is unlikely!

Section 21 or Section 8 notices are not appropriate for serving on an excluded occupier (a lodger or excluded tenant) - these are only served on full tenants, i.e. someone renting a whole house or flat under an assured shorthold tenancy (AST).

Assignment (change) of resident landlord

Although it isn’t likely to happen often, it may sometimes be the case that a live in landlord moves out, to make way for another live in landlord (who could be a new owner occupier or the owner’s tenant), but the lodger remains living at the property. This is likely to be more usual with HMOs.

Provided the lodger is given 28 days notice of the change of live in landlord, and the new landlord moves in within 6 months, the renter's status remains that of a lodger, although they have temporary tenancy rights if there is a gap between the old landlord moving out and the new one moving in, so they would become an excluded tenant until the new landlord moves in.

If a resident landlord dies, his/her estate will simply continue as “resident” landlord (as though there had been no change of landlord) until the property is disposed of. However, while the lodger is living in the property without a resident landlord, it would be advisable to assume the lodger has temporary excluded tenant status until probate is settled and a replacement resident landlord moves in.

Further information on change of resident landlord can be found in the government leaflet, Rent a room in your home.

Further questions?

       The Landlord

@The_Landlord has kindly featured many of my answers to landlord's and lodger's questions on his Taking In Lodgers- ‘Rent-A-Room’ Scheme Guide on his comprehensive (and very entertaining!) popular landlord advice site and blog, Property Investment Project. Topics covered include how rent from a lodger affects benefits, lodger running a business, rent, tax and serving notice.

Next - Notice Periods