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Setting up a Tenancy
Setting up a Tenancy
On this page you will find information regarding the various types of tenancies available.
However, please note the following guidance must not be used as a substitute for a proper reference book; they are summaries of the law, simplified to help you become familiar with different types of occupancy. Also law changes. If in doubt seek advice from an advice agency or refer to an appropriate reference book.
Use the following shortcut links to take you to the information you need to find out:
Assured Tenancies
Assured tenancies are also called Housing Act tenancies. These are tenancies regulated by the Housing Act 1988. Assured tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977.
Basic conditions:
- commenced after 15 January 1989 but before 28 February 1997 and
- landlord is non-resident and
- no notice at start which said it was shorthold and
- landlord is a private individual, company or registered housing association
Note: after 28 February 1997 an Assured tenancy can only be created where the landlord serves notice stating the tenancy is to be Assured. For tenancy to be Assured the tenant/s must have exclusive possession of at least one room and occupy as only or principal home.
Some landlords can not give Assured tenancies: the Crown, education establishments, mixed business and residential lettings and letting with resident landlords. Very high or very low rents also can prevent an Assured tenancy being created.
Question: |
Answer: |
|---|---|
| Is there a requirement for a written agreement? | No. |
| What’s the mechanism to increase a rent? | Within period of any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract or a contract has ended a rent can be increased by service of a valid Notice of Rent Increase or by provision of a new contract. |
| Does the right of occupation end on expiry of the fixed-term period in a written agreement? | No. |
| Does a liability to pay rent end on expiry of the fixed-term of a tenancy? | No. |
| Is a landlord required to provide a notice to end tenancy? | Yes. |
| Does a landlord need to give reasons why notice is being served? | Yes, grounds must be identified in a notice if the landlord is seeking possession at court. |
| Is verbal notice sufficient? | No, notice must be in writing and include certain prescribed information; it must be dated and provide details of property, tenant, landlord and a correct expiry date. The minimum requirement of notice period is also important and is different for different reasons or grounds a landlord might want a property back. Notice should also end on a specific date to the tenancy period or contract. |
| Does a liability to pay rent end on service or expiry of notice? | No, it is usual for notice to be served on commencement of the tenancy and liability continues even where a tenant has left during the term of a contract. |
| Is a landlord obliged to claim possession at court? | Yes, Assured tenancies are covered by the Protection from Eviction Act 1977 meaning that a landlord is lawfully obliged to recover possession at court. |
| How does a landlord secure possession where a court orders a tenant to leave? | They may apply for a Bailiffs Warrant to enforce possession. |
| Is an occupier still liable to pay rent after the court orders them to leave? | Yes. It’s called mesne profits and it is common for former tenants to remain in occupation of a property as tolerated trespassers where the landlord continues to receive their ‘rent’. |
Assured Shorthold Tenancies
These are often referred to as shorthold tenancies or AST’s. These tenancies are regulated by the Housing Act 1988. Assured shorthold tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977.
Basic conditions:
- commenced after 15 January 1989
- landlord is non-resident and
- landlord is a private individual or company
Note: Those commenced before 28 February 1997 can only be shorthold tenancies where a valid ‘notice of shorthold’ was served prior to occupation and the tenancy was for a minimum of six months. Tenancies on or after 28 February 1997 will automatically be Assured shorthold where other conditions of Assured status apply.
The tenant/s must have exclusive possession of at least one room and occupy as only or principal home. Some landlords cannot give Assured shorthold tenancies: the Crown, education establishments, and resident landlords. Very high or very low rents also can prevent an Assured shorthold tenancy being created.
Question: |
Answer: |
|---|---|
| Is there a requirement for a written agreement? | No. |
| What’s the mechanism to increase a rent? | Within period of any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract or a contract has ended a rent can be increased by service of a valid Notice of Rent Increase or by provision of new contract. |
| Does right of occupation end on expiry of the fixed-term period in a written agreement? | No. |
| Does a liability to pay rent end on expiry of the fixed-term of a tenancy? | No. |
| Is a landlord required to provide a notice to end tenancy? | Yes. |
| Does a landlord need to give reasons why notice is being served? | Yes, grounds must be identified in a notice if a landlord if seeking possession at court. |
| Is verbal notice sufficient? | No, notice must be in writing and include certain prescribed information; it must be dated and provide details of property, tenant, landlord and a correct expiry date. The minimum requirement of notice period also is important and is different for different reasons or grounds a landlord might want a property back. Notice should also end on a specific date to the tenancy period or contract. |
| Does liability to pay rent end on expiry of notice? | No, it is usual for notice to be served on commencement of the tenancy and liability continues even where a tenant has left during the term of a contract. |
| Is a landlord obliged to claim possession at court? | Yes, Assured shorthold tenancies are covered by the Protection from Eviction Act 1977 meaning that a landlord is lawfully obliged to recover possession at court. |
| How does a landlord secure possession where a court orders a tenant to leave? | They may apply for a Bailiffs Warrant to enforce possession. |
| Is an occupier still liable to pay rent after the court orders them to leave? | Yes. It’s called mesne profits and it is common for former tenants to remain in occupation of a property as tolerated trespassers where the landlord continues to receive their ‘rent’. |
| What is the difference between Assured and Assured shorthold tenancies? | There is a special reason or ground for possession only available to landlords with Assured shorthold tenants. This allows a landlord to claim possession on the basis that an Assured shorthold tenancy has expired. This is not available with any other type of tenancy. Seeking possession under this ground still needs notice and must be claimed at court, but where correctly claimed there is no defence and the courts will award possession without a court hearing. |
Protected Tenancies
Protected tenancies are also called regulated rent act or fair rent tenancies. Their tenancies are regulated by the Rent Act 1977. Protected tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977.
Basic conditions:
- commenced before 15 January 1989 and
- landlord is non-resident and
- landlord is a private individual or company
Note: after 15 January 1989 no new Protected tenancy can be created. There are some exceptions but these are limited to existing tenants moving to a new property provided by the same landlord under very specific circumstances.
For a tenancy to be Protected the tenant/s must have exclusive possession of at least one room but does not always have to occupy the property as only or principal home - there are rules about this. Some landlords cannot give Protected tenancies: the Crown, local authorities and lettings with resident landlords. Very high or very low rents also can prevent a Protected tenancy being created.
Questions |
Answer: |
|---|---|
| Is there a requirement of written agreement? | No. |
| What’s the mechanism to increase a rent? | Within period of any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract or a contract has ended a rent can be increased by service of a valid Notice of Rent Increase or by provision of new contract. Alternatively an application to the Rent Officer Service can be made by either the landlord or tenant for a ‘fair rent’ registration. |
| Does right of occupation end on expiry of the fixed-term period in a written agreement? | No. |
| Does liability to pay rent end on expiry of the fixed-term of a tenancy? | No. |
| Is a landlord required to provide notice to end tenancy? | Yes. |
| Does landlord need to give reasons why notice served? | Yes, must be identified in notice by landlord if seeking possession at court. |
| Is verbal notice sufficient? | No, notice must be in writing and include certain prescribed information; it must be dated and provide details of property, tenant, landlord and a correct expiry date. The minimum requirement of notice period also is important and is different for different reasons or grounds a landlord might want a property back. Notice should also end on a specific date to the tenancy period or contract. |
| Does a liability to pay rent end on expiry of notice? | No, it is usual for notice to be served on commencement of the tenancy and liability continues even where a tenant has left during the term of a contract. |
| Is a landlord obliged to claim possession at court? | Yes, Protected tenancies are covered by the Protection from Eviction Act 1977 meaning that a landlord is lawfully obliged to recover possession at court. |
| How does a landlord secure possession where a court orders a tenant to leave? | They may apply for a Bailiffs Warrant to enforce possession. |
| Is an occupier still liable to pay rent after the court orders them to leave? | Yes. It’s called mesne profits and it is common for former tenants to remain in occupation of a property as tolerated trespassers where the landlord continues to receive their ‘rent’. |
| What is the difference between Protected and Assured agreements? | There is a significantly greater degree of protection afforded these tenants under the Rent Act. They have protection from market rents under ‘fair rent ‘ registration and it is relatively more difficult for a landlord to secure possession at court. The reasons available to claim possession are more limited and even grounds such as rent arrears are at the discretion of the courts to award/refuse possession. |
Unprotected Tenancies
Unprotected tenants are sometimes called Unprotected Occupiers. Neither the Housing nor Rent Acts regulate these tenancies. Unprotected tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977.
Basic conditions:
- commenced after 15 January 1989
- landlord is resident but
- neither landlord or landlord’s family shares accommodation
Note: Sharing accommodation does not include access, stairs, hallway or storage.
The tenant/s must have exclusive possession of at least one room and occupy as only or principal home. The landlord must occupy the dwelling as her only or principal home. Being resident means living in the same property as the tenant unless it is a purpose built block of flats.
Question: |
Answer: |
|---|---|
| Is there a requirement for a written agreement? | No. |
| What’s the mechanism to increase a rent? | Within period of any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract or a contract has ended a rent can be increased by service of a valid Notice of Rent Increase or by provision of new contract. |
| Does the right of occupation end on expiry of the fixed-term period in a written agreement? | No. |
| Is a landlord required to provide notice to end tenancy? | Yes. |
| Does a landlord need to give reasons why notice is being served? | No, where claiming possession a landlord does not need to provide a court any reason why but must confirm that their tenant is an Unprotected Occupier. |
| Is verbal notice sufficient? | No, notice must be in writing and include certain prescribed information; it must be dated and provide details of property, tenant, landlord and a correct expiry date. The minimum requirement of notice is 28 days or whatever might be identified in any written agreement. Notice should also end on a specific date to the tenancy period or contract. |
| Is landlord obliged to claim possession at court? | Yes, Unprotected tenancies are covered by the Protection from Eviction Act 1977 meaning that a landlord is lawfully obliged to recover possession at court. |
| What is the difference between Unprotected and Assured shorthold agreements? | There is no requirement for the landlord to give any reason why possession is sought but any claim at court will require a hearing. |
Excluded Occupiers
Excluded Occupiers are often referred to as bare licencees. Neither the Housing nor Rent Acts regulate these tenancies. Excluded Occupiers are not afforded protection from eviction under the Protection from Eviction Act 1977.
Basic conditions:
- commenced after 15 January 1989
- landlord or member of landlord’s family is resident &
- landlord or member of landlord’s family was resident on occupation &
- occupier shares accommodation with landlord or member of landlord’s family
FAQs on Excluded Occupiers:
Question: |
Answer: |
|---|---|
| Is there a requirement for a written agreement? | No. |
| What is the mechanism available to increase a rent? | By an agreement between the landlord and tenant. |
| Does liability to pay rent end on expiry of the fixed-term of a tenancy? | No. |
| Is a landlord required to provide notice to end tenancy? | Yes, but this is only a requirement under common law and is not a right that can be enforced. |
| Does a landlord need to give reasons why notice is being served? | No. |
| Is verbal notice sufficient? | Yes. |
| Does a liability to pay rent end on expiry of notice? | No, liability to pay extends to the full period of a tenant’s occupation. |
| Is a landlord obliged to claim possession at court? | No. |
| How does a landlord secure possession? | They may apply to the courts for possession and seek to enforce this with an application for a Bailiffs Warrant where a Possession Order has expired. However, in nearly all cases a landlord will simply exclude the occupier. |
Notice and Possession Action
The requirements of notice and claims for possession are similar but different for all types of tenancies. Assured and Assured shorthold tenancies are regulated under the Housing Act 1988. Notices served under the Housing Act must meet certain criteria and include prescribed information that details a tenant's continued right of occupation and ability to seek advice. This type of notice is called either Notice Seeking Possession or Notice Requiring Possession, both of which are available to download in pdf format.
These notices must include the reasons or grounds why possession is sought.
Where possession is sought using the reason that a tenancy has ended this is referred to under Section 21 of the Housing Act 1988. To be valid this type of notice must provide a minimum of two months notice from date served to date notice expires. Most commonly notice is served under S.21, as there is no requirement for a court hearing prior to the court awarding possession. However, a landlord can’t make a claim for money owed under this ground and might therefore serve notice under grounds 8, 10 and 11 of Schedule 2 of the Housing Act 1988. The length of notice under these grounds is only 2 weeks. A claim for possession can therefore be made sooner than under S.21
With Protected and Unprotected tenancies a landlord is also obliged to serve notice to recover possession. This type of notice is called a Notice to Quit, an example of which you can download here in pdf format.
To be valid a Notice to Quit must meet certain criteria and include prescribed information that details a tenant’s continued right of occupation and ability to seek advice.
Where a landlord makes a claim for possession at court prior to deciding a claim the courts will write to the occupier. This is called a summons. The summons allows the occupier to state any legal argument against a landlord’s claim. The summons identifies the date for any court hearing and details of the landlord’s claim. These particulars of claim will include the grounds the reasons in law under which the landlord will claim possession under, the costs of the claim a tenant will be liable for and details of any claim for money (rent owed) if applicable.
With the exception of claims for possession under the special shorthold ground only applicable to Assured shorthold tenancies, all claims for possession require a court hearing.
A court will make a decision at a hearing to award or refuse possession. A court’s decision is based on that evidence provided to it and any legal argument for and against possession to be awarded. A court has limited authority to use its judgement in these matters.
A landlord in claiming possession must identify what legal reason/s possession is sought under. Some reasons are discretionary. This means that even where a reason is proved a court has the authority and discretion to refuse possession if it considers this just and equitable to do so.
An example of a discretionary ground under the Housing Act applicable to Assured and Assured shorthold tenancies is a tenants failure to pay rent on the due date specified in an agreement, (Ground 11, Schedule 2, Housing Act 1988). This means a court might award possession where a tenant has an agreement requiring payment of rent in advance by the first of the month but whilst their entitlement to housing benefit meets the full rent charged its paid in arrears every four weeks.
Other reasons are mandatory. This means that where proved the court has no discretion and must award possession. An example of a mandatory ground under the Housing Act applicable to Assured and Assured shorthold tenancies is a tenants failure to pay rent to the value of 8 weeks or 2 months both on the date notice is served and by the date of a court hearing. (Ground 8, Schedule 2, Housing Act 1988). This means a court must award possession on this ground where proven. The court is unable to listen to evidence that a tenant’s potential entitlement to housing benefit would meet the full rent due and clear arrears outstanding. The court is unable to consider problems with a delay in payment. Problems due to:
- a tenant’s difficulty in securing information to assess a benefit claim
- a landlord’s failure to provide information to assess a benefit claim
- or where processing and payment of benefit can’t be made until after a court hearing
will not be considered.
Where a court awards possession a tenant can remain in occupation and will still remain liable to pay rent. Some landlord’s will tolerate such an occupier but if they do not want their continued occupation after expiry of a County Court Order for Possession the landlord can return to the court and apply for a Bailiffs Warrant. Bailiffs will then give notice to the occupier and attend to enforce possession.
Other Agreements to Occupy
Are there other types of tenancies and agreements to occupy? Yes!
- There are Secure tenancies provided by Councils.
- There are mixed business and residential lettings, under Part 2, Landlord and Tenant Act 1954.
- There are lettings affording basic protection to students provided by educational establishments.
- There are lettings affording limited security to asylum seekers.
- There are Restricted Contract agreements afforded Rent Act protection.
- There are Service tenancies regulated under either the Rent or Housing Act’s covering tied accommodation and other types of Service Occupancies provided by employers.
- There are a whole range of other types of agreements both tenancies and licences.