 |
 |
|
|
 |
There are many different types of tenancy or residential agreement that exist in the private sector. Below, we give a very brief overview of the features of each different type of tenancy: Assured Shorthold Tenancy The Assured Shorthold Tenancy (AST) is the most common form of tenancy in England and Wales today. All new tenancies created after 28th February 1997 are AST's unless you and your tenant agree otherwise or the law prevents it. AST's do not give the tenant a great deal of protection from eviction. In order to end an AST, you have to give your tenant not less than two months notice in writing. There are some rules that need to be followed. Once the notice expires, you can only lawfully evict your tenant through court proceedings. The rent you charge on an AST is the rent you agree with your tenant. There will be some AST's that were created before 28th February 1997. Prior to this date, landlords had to serve a notice on the tenant before the tenancy began to notify the tenant that an AST was being created. Many landlords failed to do so or failed to serve the notice in the proper form and created Assured Tenancies by mistake. Assured tenancy Assured tenants have security of tenure and can only be evicted if you can prove one of the legal grounds for possession. You have to serve a notice in the prescribed legal form if you want your tenant to leave and bring court proceedings as necessary. The most common "grounds" relied upon by landlords are grounds 8,10 and 11 which relate to rent arrears. In some cases (the "mandatory" grounds) the court must give you possession if you can prove your case. In other cases (the "discretionary" grounds) the court can give you possession but it is not guaranteed. With Assured tenancies, the rent paid is the rent agreed between you and your tenant. If you cannot agree, you can serve a formal notice of rent increase on your tenant to increase the rent. You tenant can refer the rent increase to the Rent Assessment Committee who can set a rent that is binding on you and your tenant. Most Assured tenancies were created between 15th January 1989 and 28th February 1997. With both Assured and Assured Shorthold tenancies, there are certain factors that need to exist for either tenancy to be created.
If this happens, a Common Law Tenancy will be created. Common Law Tenancies There are a number of occasions where the law says an Assured or an Assured Shorthold tenancy cannot be created. Even if you give a tenancy agreement that is described as an Assured Shorthold tenancy, the law will say that you cannot create it. The most common form of Common Law tenancy is a tenancy granted by a resident landlord. If you live in one part of a house and you grant a tenancy in a separate part of the house, you will create a common law tenancy. Crucially, such a tenancy will only be created if you do not share any living accommodation with the tenant. For example, if you live on one floor of a converted house in self-contained accommodation and you rent out another floor to a tenant, a common law tenancy will be created. Common law tenancies are sometimes called Unprotected Tenancies. This can be slightly confusing because to end a common law tenancy, you have to serve a Notice to Quit in the prescribed form. Once the notice ends, you may have to bring court proceedings. The rent your tenant pays is the rent you agree. Regulated Tenancies Regulated tenancies are governed by the Rent Act 1977 and provide your tenant with the maximum security that can be provided in the private rented market. Your tenant's rent can only be increased by regulation, he is entitled to a "fair rent" and you will find it very difficult to evict your tenant. No new regulated tenancies could be created after 15th January 1989, unless you gave an existing regulated tenant another property after that date. In such cases, the court could hold that a regulated tenancy still exists. If you want a regulated tenant to leave, you will need to serve a Notice to Quit in the prescribed form and seek possession in the court using one of the "cases" for possession. Even if you prove your case for possession, the court must decide if it is reasonable for your tenant to leave. If your tenant moved into the property before 15th January 1989, and you are not sure your rights, contact us for advice. Restricted Contracts Restricted Contracts were tenancies created before 15th January 1989 that could not be regulated tenancies, for example, tenancies created by resident landlords. If there has been any change in the terms of a tenancy since 15th January 1989, the restricted contract has been converted into a Common Law Tenancy and can be ended as described above. Note that unfurnished tenancies granted by resident landlords before 14th August 1974 will not be Common Law Tenancies but will be Regulated Tenancies. Protected Shorthold Tenancies Protected Shorthold tenancies were brought in by the Housing Act 1980 and were a forerunner to the Assured Shorthold Tenancy. They were not popular because they were too many rules to follow. If one was correctly created, it has probably now been converted into an Assured Shorthold tenancy. However, if you or any previous landlord gave such an agreement to your tenant, you may need advice about your rights. Excluded Tenancies Excluded tenancies are excluded from Section 3 of the Protection from Eviction Act 1977 (as amended). This means that if you grant an excluded tenancy, you do not need to seek a court order to evict your tenant. However, you must still give "reasonable notice" and we recommend you give notice in writing. The most common form of excluded tenancy are tenancies that are granted by resident landlords who share living accommodation with their tenants. For want of a better word, Lodgers! If you rent out a room in your house, and you share a kitchen, bathroom, living room or WC with your tenant, he will be no more than a lodger. Other examples of excluded tenancies include genuine holiday lettings and tenancies where no rent is charged. The rent you can charge is the rent you agree with your tenant. Licences There are two types of tenure in private rented housing. The tenancy and the licence. A tenancy creates a legal interest in the property and a licence only gives permission for the person to occupy the property. A licence will be created where you do not give the occupier exclusive use of his home. For example, this could be where the occupier lives in a room in a building and you reserve the right to move him to another room. Or it could be created because the property is not let as a separate dwelling. For example, the occupier has a room but he has no kitchen and shares a bathroom. There are two types of licence, contractual and excluded. Excluded licences can be ended by serving reasonable notice as described above. However, a contractual licence can only be ended by serving a Notice to Quit in the prescribed form and bringing court proceedings. Service Agreements Service agreements are agreements where there is an employer/employee relationship between the landlord and the occupier. A Service Licence is created where the employee has to live in the premises to carry out his job. Common examples include school caretakers or pub managers. A service licence does not create security for the employee and if the employment contract says the employee will leave the accommodation when the job ends, there is no need to serve any notice. However, the employee can only be lawfully evicted by court proceedings. If the employment contract does not mention that the accommodation will end when the job ends, a Notice to Quit must be served in the prescribed form before any court proceedings. A Service Tenancy is created when the employer gives accommodation to the employee that is not necessary for the job. What rights the tenant has will depend on the laws that were in force at the time he moved in.
|
