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

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; and

• Rent control

• Can only be terminated if the landlord has a statutory ground for possession

• During 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; and

• The 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 dwelling

• A 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

• S7: where payment for board (e.g. meals) formed a substantial part of payment for rent

• S15: Landlord’s interest belongs to the Housing Association

• S16: 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.

Residence

• A 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:

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

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

3. Mandatory...

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