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Rent Act And Secure Tenancies Notes

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This is an extract of our Rent Act And Secure Tenancies document, which we sell as part of our Property and Chancery Notes collection written by the top tier of City Law School students.

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RENT ACT AND SECURE TENANCIES PROTECTED TENANCIES........................................................................................................................... 2 A tenancy under which a dwelling house is let as a separate dwelling.......................................................2 Residence.................................................................................................................................................. 3 Termination of Tenancies........................................................................................................................... 3 Suitable Alternative Accommodation......................................................................................................4 Main Discretionary Grounds...................................................................................................................4 Main Mandatory Grounds....................................................................................................................... 5 Possession Procedure............................................................................................................................... 5 Succession................................................................................................................................................ 5 Fair Rents.................................................................................................................................................. 6 PUBLIC SECTOR TENANCIES/SECURE TENANCIES...............................................................................8 Exceptions................................................................................................................................................. 8 Introductory And Demoted Tenancies.....................................................................................................9 Flexible Tenancies.................................................................................................................................... 10 Security of Tenure.................................................................................................................................... 10 Termination.............................................................................................................................................. 11 Grounds............................................................................................................................................... 11 Seeking Possession................................................................................................................................. 13 Possession Procedure............................................................................................................................. 14 Tenant - Challenging the possession order, or applying for suspension or postponement.......................14 Public Law Defences to possession claims..............................................................................................15 Succession............................................................................................................................................... 16 Caselaw on Succession....................................................................................................................... 17

1 RENT ACT AND SECURE TENANCIES PROTECTED TENANCIES Tenancies granted before 15th January 1989 are protected by the Rent Act 1977. As indicated previously, there have been a steady erosion of the substantial degree of tenant security and rent control provided under the Rent Acts - in particular, the Housing Act 1988 and 1996 have largely replaced the regime based on long term tenant security and rent control. However, the new laws does not act retrospectively so the tenancies which were entered before 15 January 1989 and acquired by possession after that date are still governed by the 1977 Act.Advantages:Strong security of tenure; andRent controlCan only be terminated if the landlord has a statutory ground for possessionDuring the contractual term, the tenant is known as a protected tenant (s.1 RA1977)After the end of the contractual term, the tenant has a right to stay on as a statutory tenant until the landlord has a statutory ground for possessions as long as the tenant resides in the premise (s.2 RA 1977)For periodic term rent act tenancies, under the Rent Act 1977 system, the contractual term would have to:Be ended by the landlord by serving notice to quit to end the periodic term; andThe landlord would have to show statutory ground for possession as well.

To end the statutory tenancy that would otherwise arise.

A tenancy under which a dwelling house is let as a separate dwellingA tenant is protected under the Rent Act if there is a dwelling house let as a separate dwelling, unlike the Rent Act 1998, it doesn't have to be their only and principle home.It must be let as a dwelling - if the change is to be changed to a significant business use - see Phaik Seang Tan v Julian Sitkowski [2007] EWCA Civ 30 where the tenancy was granted for mixed use as business and residential (in this case, the shop was on the ground floor) flat above the tenant could not unilaterally stop using the ground floor for business purposes and use for residential and get protection of the 1977 Act in relation to that area which was previously a business as not separate dwelling - it could then become a business tenancy under the Landlord and Tenant Act 1954 instead.However, a tenant will not be protected under the Rent Act 1977 if they fall under the following exceptions - ss 4-16 e.g. high rateable value, resident landlord, the landlord provides substantial board or attendance to the tenant.S5A:

certain qualifying shared ownership leases e.g. granted by the Housing Associations 2

RENT ACT AND SECURE TENANCIESS7:

where payment for board (e.g. meals) formed a substantial part of payment for rentS15:

Landlord's interest belongs to the Housing AssociationS16:

Interest belonging to a housing cooperative

It should be noted that these are not excluded under the 1988 Act. NB:

If it starts as business use and changes to residential use that cannot become a residential tenancy because it has not been let as a dwelling house in the first place. Under the Rent Act, a company could be protected, during the contractual term.

ResidenceA tenant remains a statutory tenant at end of fixed term so long as he occupies the dwelling house as his residence (s.2 RA 1977). This minimises s1 RA 1977, where it appears that the tenant need not occupy the premises at all.Whether he occupies it as his residence, even if he was physically absent from the premises, he may be resident if he had the intention to return and he has possession showing his physical occupation of the premises. In Brown v Brash 1948 2 KB 247, the tenant was sent to prison and left in the premises were his co-habitee and three children. Eventually, she vacated leaving three (3) pieces of domestic furniture - although found against him in this case, it was held that leaving furniture could amount to an intention to return and therefore, retail the protected tenant status.You may also be resident in two (2) homes under the Rent Act 1977. In Hampstead Way Investments Ltd v Lewis-Weare [1985] 1 WLR 164 S, a man spent five (5) nights each week in a rented flat to avoid disturbing his wife and children as he worked unsociable hours, he made very little use of the flat otherwise and ate all his meals and spent the other two nights in a house half a mile away where his wife lived. It was held could not occupy the flat as residence and so was not a statutory tenant within s2(1).

Termination of Tenancies A protected tenancy is a contractual tenancy subject to the normal rules of landlord and tenant. If it is for a fixed term, the Landlord cannot bring it to an end before the end of the fixed term other than forfeiture. It is unlikely that there are many fixed terms tenancies in existence having been granted pre-1977. However, there are tenancies still within the Act whereby a pre-1989 tenancy is holding over i.e. is not a periodic tenancy. The landlord can try and terminate this type of tenancy by serving a four (4) weeks notice to quit in the prescribed form s5 Protection from Eviction Act 1977.If you are protected under the Rent Act 1977, the landlord can only terminate the tenancy on one (1) of the statutory grounds for possession as set out in s98 and schedule 15. The grounds are: i.

Suitable alternative accommodation and court considers it reasonable to grant possession; 3

RENT ACT AND SECURE TENANCIES ii.

Discretionary grounds for possession (schedule 15 Part 1); and

iii. Mandatory grounds for possession (schedule 15 Part 2).

Suitable Alternative Accommodation The same requirement applied in HA 1988. This is defined in Part IV of schedule 15. To be suitable, the landlord must show alternative accommodation is available providing similar level of security, for the tenant and ensuring that it is adequate for the tenants needs taking into account the level of rent, extent of accommodation, reasonable suitable for the tenants means and needs ad his family regarding extent and character.They must provide adequate security of tenure and must be Suitable for the tenant's means and needs.

Main Discretionary Grounds The discretionary grounds for possession are listed in schedule 15, part 1 of the 1977 Act. This is similar to Part 2 schedule 2 of the Housing Act 1988, both deals with the situation where the Court may order possession if it considers it reasonable to do so - with the exception of 8 and 9. The cases in part 1 could be described as fault grounds as the tenant usually done something wrong and as a result the landlord can obtain possession. The main discretionary grounds that may still be relevant under the Rent Act 1977 are: i.

Rent arrears (reasonable) or breach of another term in the tenancy - Case 1

ii. Nuisance, annoyance, illegal or immoral user by the tenant - Case 2 This is narrower than that of assured tenants under the 1988 Act. The basis of the claim here is of the tenants behaviour only. It does not extent to the others who may be residing with the tenant or visitors who cause a nuisance to adjoining occupiers.

iii. Deterioration of premises or furniture due to the tenants conduct - Cases 3 and 4 The same grounds apply as that of the 1988 Act and assured tenants. However, the 1977 Act does not extend to common parts.

iv. Tenants notice to quit - Case 5 This will apply if the Landlord had contracted to sell or has taken other steps as a result of receiving the tenant's notice to quit and so would be seriously prejudiced if he did not regain possession.

v. Tenant has assigned or sublet whole of premises - Case 6 This case is date sensitive, not all tenants will be affected in the same way. The date of commencement of the tenancy will need to be checked. In Pazgate Limited v McGrath [1984] 2 EGLR 130 (CA), the tenant dies and executors signed and vesting order assigning tenancy to 4

RENT ACT AND SECURE TENANCIES daughter in law who lived in the flat despite assignment being prohibited in the tenancy agreement. It was held that it was reasonable to make a possession order as the assignee who occupied the flat could become a statutory tenant whereas a deceased person original tenant could not. vi.

Repealed - Case 7

vii. Expiry of employment tenancy (similar to Ground 16 for assured tenants under Housing Act 1988)

viii. The property is reasonably required by the landlord as a residence for the landlord or the landlord's children, parents or spouse's or civil partner's parents - Case 9. Defence - Unless the tenant would suffer greater hardship (schedule 15 Part 111)

Main Mandatory Grounds Part II of schedule 15 contains cases for which if established by the landlord the Court must order possession unlike under the 1988 Act, there are no fault based cases for possession so long as tenant has advance written notice that might obtain possession under one (1) of those grounds. i.

Case 11 and 12: The landlord requires the property for their residence, and gave notice to the tenant before the commencement of the tenancy that they might require possession, known as an owner-occupier notice. The reasons are as listed in part V of schedule 15. The Court may dispense with the notice requirement if it is just and equitable to do so. NB:

The scope is wider than under the 1988 Act as not only the landlord who required possession but also a member of his family which lived with him when he last occupied the property.

ii. Other mandatory grounds are rarely applicable or more obscure.

Possession ProcedureCPR Part 55The Court has general power to stay or suspend possession under s100 Rent Act 1977

Succession Prior to the Housing Act 1988, all Rent Act tenancies governed by the same regime in s2(1) by schedule 1 part 1 of the 1977 Act. These provided for Spouses to succeed to statutory tenancies ad for other family members who had lived with the deceased tenant for six (6) months or more also to succeed to statutory tenancies. Two successions were possible (trying to create the idea of a family home) - these were

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