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Private Residential Introduction The law commission has stated that housing law is based on four established principles:
1. Guaranteeing security of tenure
2. Possession proceedings and the need for due process
3. Bringing a consumer prospective to bear on housing law
4. Human rights The law commission has also stated three objectives for an active and well run rental sector:
1. To provide choice for those who want to rent
2. To meet social need by providing housing for those who cannot afford to buy
3. To increase flexibility in the accommodation and labour markets by enabling people to move quickly so as to take up job opportunities or to explore new housing options Currently there are two separate codes of protection for private residential tenants:
Rent Act 1977 This applies to tenancies created prior to 15 January 1989. Tenants covered by the RA 1977 are protected tenants and enjoy lifelong security of tenure and also rent control.
Housing Act 1988 This applies to tenancies on or after 15 January 1989 There are two types of tenancy under HA 1988, either the assured tenancy or the assured shorthold tenancy. An assured tenant enjoys lifelong security of tenure. An assured shorthold tenant may have their tenancy terminated on two months notice (HA 1988 s.21) From 28 February 1997 the assured shorthold tenancy became the presumed form of all private residential tenancies (s.19A) All rents under the HA 1988 are market rents and so not subject to rent control. HA 1988 applies to housing association tenancies after 15 January 1989. Any housing association tenancy before then is governed by the public sector regime.
Scope of statutory protection Definition of protected and assured tenancies NB: assured tenancy includes both assured tenancies and assured shorthold tenancies for the purpose of these notes. A tenancy under which a dwelling house is let as a separate dwelling house is let as a separate dwelling is a protected tenancy for the purposes of this act (Rent Act 1977 s.1) A tenancy under which a dwelling house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as the tenant or each of joint tenants is an individual AND the tenant occupies the dwelling house as his principle or only home AND the tenancy is not one which due to subsection (2) or (6) cannot be an assured tenancy (Housing Act 1988 s.1(1))
1. Dwelling house A dwelling house may be a house or part of a house (HA 1988 s.45)
A caravan which is moveable and has wheels, but which is chained up and immobilised and attached to mains services, is not a dwelling. A caravan could be a dwelling if it is less mobile though, it must not be easy to remove connections to the mains (Allen)
A houseboat moored on the Thames is not a dwelling despite being connected to themains and chained to the riverbed. It could easily be disconnected and the only reason it was chained was to stop it floating away (Chelsea Yacht and Boat v. Pope)
The House of Lords has said that to be a dwelling then something must become a fixture. This meant it had to be attached to the land such that it would need to be dismantled in order to move it (Elitestone v. Morris)
2. Let as a separate dwelling a. Let Must be a lease and not merely a license.
b. As The focus is on the original purpose of the tenancy, not what it has subsequently been used for. It must originally have been let as a dwelling.
If when the lease was granted it was even partially intended that the lease was for a shop then the property was not let as a dwelling (Ponder v. Hillman)
Just because a tenancy has a restrictive covenant saying that no residential use is allowed does not prevent the tenant trying to prove that this was a sham and the true intention was for residential use (Cooper v. Henderson)
c. A The premises must be let as a single dwelling
The lease of a house for occupation as several student dwellings did not fall within the definition. This was multiple single person households and not a single household and so not a single dwelling (St Catherine's College v. Darling)
A lease of two non-adjacent flats both occupied by the tenant as his home was treated as a single dwelling (Goldrich)
A lease of two flats where the tenant lived in one and rented the other to a licensee was not let as a single dwelling because they always intended to be two separate flats (Grosvenor v. Amberton)
d. Separate If the tenant is sharing any part of the living accommodation then prima facie the premises are not let as a separate dwelling. Living accommodation includes everything except the bathroom/toilet.
It is fine to share with people other than the landlord (HA 1988 s.3)
If the tenant sublets part of the premises then they may share part of the living accommodation with the subtenant. They just must not share with the head landlord (HA 1988 s.4)
The landlord may not take possession of shared areas but not the separate areas (HA 1988 s.10(2))
A generally worded term obliging the tenant to share part of the living accommodation with whomsoever the landlord chooses was not sufficient to indicate the possibility of the landlord sharing. To show this would require an explicit term (Miller v. Eyo)
e. Dwelling The word dwelling should be given its natural meaning. It must support sleeping and eating, but need not support cooking. (House of Lords (particularly amusing speech from Lord Millett saying that people might prefer to always eat out instead of cooking) in Uratemp)
An au pair's room was not a dwelling as the au pair never ate there and it was not appropriate for eating in (Metropolitan Properties v. Border)
3. Occupation as only or principal home / occupation as a residence Under the Rent Act 1977 there is no requirement for the protected tenant to occupy the property at all during the contractual period of the lease, but the protected tenancy will only continue after the contractual period if and so long as he occupies the dwelling as his residence.
The protected tenancy will only continue after the contractual period if and so long as the tenant occupies the dwelling house as his residence (RA 1977 s.2(1)(a))
For this continuous residence is not required, merely some sign of a continuing physical presence (which could be furniture or family members) and a demonstrable intention to return.
Under the Housing Act 1988 s.1(1) the tenant must occupy the dwelling house as his only or principal home, otherwise the tenant will not be an assured tenant.
The Housing Act 1988 is deliberately stricter than the Rent Act 1977 in this regard, the idea being that it will prevent a tenant enjoying statutory protection in more than
one property at the same time. Housing Act 1988 s.1(1) is the same as the rules concerning public landlords in HA 1985 s.81.
A temporary absence is not necessarily inconsistent with the tenant remaining in occupation as his principal home. One does not cease to occupy simply by moving in with one's girlfriend for a bit (Crawley v. Sawyer)
If the tenant is not currently living in the property then the burden is on the tenant to prove that there is a continuing occupation as a principal home. This is judged on an objective assessment of the criteria, not the tenant's subjective intention (Ujima) Where a tenant has been absent for 12 years in prison, but had continued to pay the rent and the property was his only residence outside prison, then he had not ceased to occupy as his principal home (Amoah)
Each case must be considered on its particular facts. A relatively lengthy absence is not fatal, but it will become the responsibility of the tenant to prove that the dwelling is his only and principal home. The tenant must establish an intention to return within a reasonable time, and there must be objective indications of that intention (Lord Justice Etherton in Islington v. Boyle)
Tenancy status is not affected by a fleeting change of mind, there must be a firm and settled intention (Hammersmith v. Clarke)
Occupation by the tenant's spouse is treated as occupation by the tenant even if he/she is not a joint tenant (Family Law Act 1996 s.30(4))
If the tenant ceases to occupy the property as his principal home then the tenancy will cease to be assured and will lose its statutory protection. It will not come to an end though until it is lawfully terminated.
4. The tenant is an individual The tenant, or all of joint tenants, must be individuals (HA 1988 s.1(1))
The Rent Act 1977 also requires that the tenant be an individual for the protected tenancy to continue after the contractual period because a company cannot satisfy the Rent Act 1977 s.2(1)(a) requirement to occupy the dwelling house as his residence.
A letting to a company will not be an assured or a protected tenancy even if the intention is to in fact use the premises as a dwelling by an individual, unless the tenant can demonstrate that the agreement is a sham. However the courts will be reluctant to find that a tenancy to a company is a sham.
The courts have even found a lease to a company to not be a sham when the landlord refused to grant a tenancy to an individual but allowed the tenancy to be granted to a company formed by the individual solely for that purpose (Kaye v. Mossbetter)
Exclusions from statutory protection Generally the statutory exceptions fall within 3 categories: tenancies covered by other statutory schemes; lettings for particular purposes; tenancies deliberately left outside the scheme. There are slightly different provisions for the HA 1988 assured tenancies and the RA 1977 protected tenancies. Exclusions from HA 1988
1. Accomodation for homeless persons If a private landlord assists a local authority by providing accommodation for homeless persons then that will not become an assured tenancy unless it lasts more than 12 months (HA 1988 s.1(6)) Other exclusions are found in Schedule 1 of the HA 1988.
2. High rental value properties Properties with an annual rent over PS100,000 do not fall within the statutory scheme (para 2)
3. Particularly low rental value properties Properties with an annual rent below PS1000 in London, or PS250 elsewhere, are excluded (para 3)
4. Business tenancies
Business tenancies have their own scheme of protection under LTA 1954 and so are excluded (para 4)
Properties for mixed use will fall under the LTA 1954 business tenancy scheme and not the HA 1988 or RA 1977 schemes.
Where a mixed use property becomes purely residential then this will not automatically bring the tenancy under the scope of the HA 1988, as the premises were not originally let as a dwelling (Tan v. Sitkowski)
5. Licensed premises If a dwelling house is or includes premises licensed for the sale of intoxicating liquors for consumption on the premises then it is excluded (para 5)
6. Agricultural tenancies Premises with more than 2 acres of agricultural land are excluded (para 6)
Agricultural holdings and farm business tenancies are excluded (para 7)
7. Lettings to students Tenancies granted to students by educational institutions cannot be assured tenancies (para 8)
If the student must provide unrestricted access for services then would not be a tenancy anyway as it would fail the Street v. Mountford requirement that a lease must grant exclusive possession.
8. Holiday lettings Holiday lettings are excluded from the statutory protection scheme (para 9)
A holiday is a temporary suspension of one's normal activity, not necessarily implying a period of recreation. The period of time must be such as to indicate that one
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