Private Residential Notes

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

   1. Let

Must be a lease and not merely a license.

2. 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)

3. 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)

4. 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)

5. 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...

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