The Renters’ Rights Act transformed the world of assured tenancies by abolishing Section 21 and converting most private lettings to open-ended periodic tenancies.

One question we get a lot at Landlord Action is how this affects lodger agreements.  

We should start by asking: what is a tenancy? In short, a tenancy means the occupier enjoys (1) exclusive possession of a defined premises (2) for a term (3) at a rent (Street v Mountford).

Lodger agreements were never tenancies, and this remains the case under the Renters’ Rights Act. Landlords who share essential living space with the occupier grant a licence, rather than a tenancy, and can usually be terminated by giving reasonable notice - typically matching the rent payment period, without a court order.

That flexibility is valuable. However, landlords should be aware that you may still end up in court having to argue that the relationship is truly one of lodger and residential landlord. Leave room for ambiguity, and you can find yourself facing expensive court proceedings, even when you ultimately win. If a landlord:

(1) shares a kitchen, bathroom or living room with the occupier

(2) occupies the property as their only or principal home when the agreement starts and ends

then the arrangement is normally an excluded licence. Labelling the document a tenancy does not decide the point. The court looks at the reality of the living arrangement.

Case study: The danger of DIY agreements

Recently, a client of Landlord Action had a wake-up call that may serve as a useful lesson for other landlords.

Our client was the owner-occupier of a two-bedroom flat. They drew up an agreement of their own and borrowed wording from various sources, without appreciating the potential confusion this could cause. They labelled the contract a ‘Flat Rental Agreement’. The document described the parties as ‘landlord’ and ‘tenant’, set a fixed term with a break clause, and required payment of rent. Critically, however, it reserved the landlord’s right to use the master bedroom. It also contained household rules and detailed shared use of facilities. The landlord later served a notice in line with the written agreement and, when the occupiers did not leave, the landlord changed the locks. Unfortunately for the landlord, the occupiers, who had the benefit of legal aid, applied without notice for an interim injunction in the High Court seeking a reversal of the eviction. A hearing was scheduled with little more than a day’s notice.

The situation was not helped by the fact that our landlord had to spend significant periods outside the country to care for an ailing relative after the agreement began. However, they did return to the flat several times throughout the year, never asking for permission from the occupiers.

Ultimately, the judge held that there was no tenancy of the whole flat, because the agreement did not grant the occupiers exclusive possession. An alternative argument - that there was a tenancy of one bedroom plus a licence of the shared areas - was also rejected.

The agreement had outlined a licence to occupy a room in a shared flat. The injunction application was dismissed, and the occupiers were ordered to pay the landlord’s costs. However, because the occupiers are receiving benefits, our client is unlikely to ever recover those funds.  

Despite the successful legal outcome, the experience was stressful for the landlord, who ultimately had to instruct a barrister to represent them in the High Court – incurring significant additional legal expenses along the way.

Remember, a lodger receiving legal aid has very little to lose by challenging an eviction in court. As this case proves, a poorly drafted agreement can leave even a live-in landlord vulnerable to lengthy and expensive litigation.

Practical pitfalls and how to avoid them

The case underlines several problems which we see frequently at Landlord Action:

Ambiguous drafting: Calling a document a ‘rental agreement’ and using tenancy language invites unnecessary legal dispute. Use a clear lodger licence template that expressly states it is not a tenancy, reserves the landlord’s right of access to all areas on reasonable notice, lists shared facilities, and sets explicit house rules.

Evidence of residence: Keep records showing the property is (and remains) your only or principal home. Periods of absence are not fatal if the intention to occupy as home continues, but gaps in evidence create dispute. If you discuss lengthy travel plans with your lodger, keep a record of those conversations.

Exclusive possession claims: If the agreement or subsequent conduct suggests the occupier can exclude you from a defined room, a court may find a tenancy of that room. Retain keys, maintain a right to enter, and avoid creating the impression of a sealed-off section of your own household.

Notice and recovery: Serve clear written notice in accordance with the agreement. When recovering possession of an excluded licence, avoid anything that could give the impression of harassment or force. Invite your lodger to collect belongings in writing and keep a record.

Cost exposure: As the above case demonstrated, if the lodger gets legal aid, you may face a contested High Court application even on a weak claim. Early advice and a well-documented paper trail could mean avoiding a day in court.

Lodger agreements have plenty of advantages. You are not confined to the defined grounds for possession under Section 8. The onerous rent increase restrictions under the Renters’ Rights Act don’t apply. The documentation requirements of the Deregulation Act 2015 have never applied, meaning you do not have to give a gas safety certificate to a lodger at the beginning of their occupation and every year afterward.

The price of that flexibility is precision. Draft the agreement carefully, act consistently with a shared occupation, keep evidence of your residence, and take advice at the first sign of dispute. All these things can make a huge difference between a smooth exit and time in a courtroom.