Lodger agreement or tenancy? The line is in section 3A, and a shared hallway is on the wrong side of it

What the template is actually claiming

Every free lodger agreement opens the same way: a line saying this is a licence and not a tenancy, and that the occupier is an excluded occupier. That line is not a term of the deal. It is a prediction about facts, and the facts are the ones in section 3A of the Protection from Eviction Act 1977.

The reason it matters is narrow and expensive. If the occupier is an excluded occupier, you can end the arrangement with reasonable notice and take the room back without going to court. If they are not, section 3 makes it unlawful to enforce your right to possession otherwise than by proceedings in the court, and section 5 makes a notice to quit invalid unless it is in writing with the prescribed information and gives at least four weeks. Same room, same rent, same document — different world.

Section 3A(2), in two parts

Subsection (2) says a tenancy or licence is excluded if, under its terms, the occupier shares any accommodation with the landlord or licensor and if, immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

Read the second limb again, because it is about you. You have to have been living there before you granted the agreement, and you have to still be living there when it ends. Subsection (3) covers the variant where the sharing is with a member of your family rather than with you, and it adds a third condition: you yourself have to occupy premises in the same building, and that building must not be a purpose-built block of flats.

• You moved out and kept letting the room. The first limb may still hold on paper, but the second fails at the moment it matters: you are not occupying the premises when the agreement ends. The let is not excluded.
• You bought the house with the lodger already in it. You did not occupy it immediately before the grant, because you did not grant anything. Whatever the previous owner wrote, your position is not the resident-landlord position.
• The sharing is only a hallway. Subsection (5)(a) says accommodation includes neither an area used for storage nor a staircase, passage, corridor or other means of access. A shared front door and a shared landing are not shared accommodation.

The hallway problem, and the kitchen that fixes it

This is the one that catches people with a converted loft or a basement room with its own entrance. The room has a bathroom. The occupier walks through the hall and up the stairs and that is the only thing you share. On the face of subsection (5)(a), that is not sharing at all: a staircase, a passage, a corridor and any other means of access are carved out by name.

What puts you inside subsection (2) is a room the two of you actually use in common: the kitchen, the living room, a bathroom that is not theirs alone. Subsection (4) defines sharing as having the use of accommodation in common with another person, whether or not also in common with others. So if the arrangement is meant to be a lodger arrangement, the shared kitchen is not a detail to be designed away for privacy — it is the thing holding the whole structure up, and the agreement should say which rooms are shared, by name.

Two exclusions that have nothing to do with sharing

Subsection (7) excludes a tenancy or licence that confers the right to occupy for a holiday only, and one granted otherwise than for money or money’s worth. Subsection (6) excludes a let granted as a temporary expedient to someone who entered as a trespasser. These sit outside the resident-landlord test entirely, which is why a free arrangement with a friend and a two-week holiday let are in a different box from a lodger.

What the notice looks like on each side of the line

If the let is not excluded, section 5(1) says no notice to quit by a landlord or a tenant is valid unless it is in writing, contains such information as may be prescribed, and is given not less than four weeks before the date on which it is to take effect. And section 3 means that even after a valid notice, possession can only be enforced through the court.

If the let is excluded, section 5(1B) says nothing in subsection (1) applies to premises let on an excluded tenancy entered into on or after the Housing Act 1988 came into force, or to premises occupied under an excluded licence. There is no statutory notice period to satisfy, which is exactly why the agreement should set one: a week, a month, whatever you both can live with, in writing. A clause you wrote is more use than a gap in a statute.

What to put in the agreement

1. 1The rooms that are shared, by name. Kitchen, living room, bathroom. Not «common parts», which may be nothing but a corridor.
2. 2A statement that you occupy the property as your only or principal home, and that you intend to keep doing so for the term. That is the second limb of subsection (2) written down.
3. 3The notice period, on both sides, since the statute sets none for an excluded let.
4. 4Rent, when it is paid and what it includes. Bills, council tax, the internet. The lodger agreement template has the fields.
5. 5House rules: guests, smoking, the one thing that actually ends these arrangements.
6. 6A deposit clause, if you take one. A deposit for an excluded let is not in a tenancy deposit scheme, and the agreement should say how it comes back. What the schemes require when a let is a tenancy is in the tenancy deposit rules.

The documents that sit either side of a lodger agreement

Section 3A decides which of two regimes you are in, and each regime has its own paperwork. Picking the document first and hoping the facts follow is how people end up with a template that contradicts itself.

• You live there and share a kitchen. A lodger agreement, with the shared rooms named and a notice period you wrote.
• Two occupiers with no resident landlord, splitting one tenancy. A roommate agreement sits on top of the tenancy and divides rent and rooms between them; it does not replace the tenancy.
• You are letting the whole property. A tenancy agreement, or a simple lease agreement where the regime allows it, and then the deposit rules bite.
• Month by month, no fixed term. A month-to-month lease agreement; how the notice works in a province that sets it by statute is in month-to-month lease in Alberta.
• Your own tenant wants to pass the room on. That is a sublet, not a lodger: sublease agreement and, for a jurisdiction that regulates the request, sublease in NYC.
• Short stays. A short-term rental agreement, which is also where the holiday-only exclusion of s. 3A(7)(a) lands.
• Ending a let you already have. A lease termination letter; for a fixed term, what happens if you break a lease.

And one that is not a housing document at all

If the room comes with a job — a live-in carer, a site caretaker — the occupation may be tied to the employment rather than granted on its own, and the document to get right is the employment contract itself, which starts with a letter of offer of employment. Whether an e-signature binds that kind of agreement, and where, is in is an electronic signature legally binding.

Getting it signed

A lodger agreement is a simple contract. It needs no deed, no witness and no notary, which is why signing it in person has always been the easy part — and also why nobody signs it at all until there is a problem. Getting it signed on the day the person moves in is worth more than any clause in it.

SignSolú is a Mexican e-signature platform that works over WhatsApp, and it is used for exactly this kind of short agreement: you upload the document, add the other person by email or phone number, and they sign from their phone without creating an account or paying anything. Each document keeps an audit receipt with time, IP, device and a SHA-256 hash, and anyone can check it later at /verificar without an account. The interface is in Spanish; what the sender chooses per signer is the language, so a signer set to English gets the email, the WhatsApp message and the signing page in English. The free plan is 10 documents with no expiry and no card: start here.

If the arrangement is in Scotland, the exclusions are in a different Act and there are two of them: lodger agreement in Scotland. If what you have is a room in a shared house with no resident landlord at all, that is a different document: free lodger agreement templates and what they get wrong and the room rental arrangement for Ontario cover the neighbouring cases. For a let of a whole property, the terms you cannot contract out of are in tenancy agreement in BC and residential tenancy agreements in England.