An Unintended Consequence of The Protection from Eviction Act 1977 S.3(a)(2)

S.3(a)(2) of The Protection from Eviction Act 1977 serves a purpose; it shields those that let out rooms in their homes, for whatever reason, from the court processes usually required to evict a tenant against their will. These processes can be costly, protracted and stressful, and Parliament decided that live-in-landlords should not have to endure them when it comes to the question of eviction. This is in line with the old-law principle et domus sua cuique est tutissimum refugium (that each man’s home is his safest refuge); in this context, it makes sense that the law does not seek to impose a tenant turned unwelcome guest (albeit a potentially paying one) upon anyone in their home for any period of time. The protection from process given by S.3(a)(2) is broad however, and I recently had cause to query whether it had limits.

It is relatively easy for the owner of a larger house who is renting out rooms to slip into a situation where they require an HMO licence, it only takes 3 tenants and a number of people choose to fill their houses in this way, after children have moved on, a partner has departed or simply because they enjoy meeting a varied mixture of people. In such a situation, it is clear that S.3(a)(2) would shield the homeowner-cum-live-in-landlord. It is more unusual for a landlord to choose to take a room in a high capacity HMO as his own, and that is the situation we must consider.

Where a building has been turned into an HMO with tens of rooms with shared kitchens and bathroom facilities, and the owner chooses to make that HMO his primary residence, is he protected by S.3(a)(2)? The initial instinct is no, that this is a quasi-commercial enterprise and would be a fully commercial enterprise were it not for his residence, that this is not what S.3(a)(2) was designed for. That final point, about design, is likely correct, however the law is both clear and broad:

A tenancy or licence is excluded if –

  • Under its terms the occupier shares any accommodation with the landlord or licensor; or 
  • immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

On either point our HMO live-in-landlord qualifies for protection; he shares accommodation with the tenants (a shared kitchen or bathroom) and the HMO is his primary residence. This raises the (admittedly obscure) point that there is no limit on the size of the building, or number of tenancies that can be caught up by S.3(a)(2) if there is a live-in-landlord.

Indeed, the landlord need not even make the HMO his sole residence, simply his primary one (though where there are multiple residences the court will always determine as a matter of fact and degree which one that is as per Sumeghovo v Mcmahon [2002] EWCA Civ 1581). Whilst it is likely to be a rare occurrence, tenants and their advisers need to be aware that a large, commercial block of 30 or 40 rooms might in fact fall under S.3(a)(2), and that any tenant’s tenancy might, therefore, be excluded from the protections that flow from The Protection from Eviction Act 1977. This is, to my mind, the unintended consequence of S.3(a)(2).