What kind of tenant do I have – an overview of different types of residential occupiers

Private landlord and tenant relationships can exist by way of the most common type of tenancy, the assured shorthold tenancy (AST), assured tenancies or secure/rent act tenancies. Any tenancy agreement granted by a private landlord after 28th February 1997 is automatically an AST, and prior to 15th January 1989 tenancies granted were commonly rent act/regulated tenancies. The period between 1989-1997 saw an introduction of the Assured tenancies. The leading case which defines an assured tenancy is the case of Street v Mountford [1985] A.C 809 which states:

“The tenant possessing exclusive possession is able to exercise the rights of an owner of land, which is in a real sense his land albeit temporarily and subject to certain restrictions…The licence does not create an estate in the land to which it relates but only makes an act lawful which would otherwise be unlawful.”

To consider whether your tenant is afforded all the rights and remedies which are available under the Protection From Eviction Act 1977, the first consideration is if your tenant has exclusive possession. This doesn’t need to be of a whole house or flat, but it could be exclusive possession of their room. The usual, but not only indication would be a lock on the door. Secondly, is the occupier an individual, or is it a company? If it is the latter, then an Assured shorthold tenancy cannot be created, however if the tenant is an individual, they are also likely to satisfy the second limb. If the property is residential accommodation (a dwelling house) and the reason for the occupation was for the tenants home (residence or only or principal home), then again this is a further test that has been satisfied. Finally, in order to establish the type of security of tenure that the tenant has, when did the tenancy start. Any tenancy started after 28th February 1997 would likely be an assured shorthold tenant if all the above criteria were satisfied.

If your tenant is a tenant, then you are not able to unilaterally terminate their tenancy agreement, and you will need to follow due process and the court application by way of a possession claim will need to be started in the County Court.

For some landlords, the let premises are a mix of residential and commercial; however the latter if incidental to the residential occupation would be sufficient to maintain the assured tenancy status, and would not be deemed to be a commercial lease or licence.

If your tenant does not satisfy the definition of a tenant as set out above, then they would not have the protections afforded to them by the Rent Act 1977, or Housing Act 1988 and therefore they may be an occupier with basic protection or an excluded occupier. Most licensees will also be either occupiers with basic protection or excluded occupiers. Even if your tenant is an occupier with basic protection they still cannot be evicted without a court order.

There are differences however if you are a resident landlord. A tenancy that is let to a person where you reside with them, will result in the tenant being excluded from protection under the Rent Act 1977 or Housing at 1988. However, you must qualify as a resident landlord and so you would be required to occupy the premises as a residence, and the premises are your only or principal home.

If you share any accommodation with your tenant such as kitchen, living room, bathroom then your tenant is likely to be an excluded occupier. However, this arrangement must be in place at the commencement and termination of the tenancy. You cannot just move into a property that your tenant occupies and seek to argue that your tenant is an excluded occupier. The law surrounding this area is very specific and factually dependent, so if you are not sure, contact our offices and we can advise you further in this regard.

Tenancies that are assured, secure introductory, starter and flexible tenancies are commonly tenancies granted by Local authorities and Housing Associations. Their security of tenure is ordinarily greater than that of a private landlord and tenant relationship.

The law surrounding private sector tenancies, and the landlord and tenant relationship is a complex one, and if you do not follow the correct procedure, the label you use on your agreements or seek to use in the courts will not assist you. The substance and intention of the parties is key, and if you are not certain as to your rights, or would like further clarification as to what your options are as a landlord, contact our specialist property disputes solicitors on 0330 822 3451 or request a call back online.