This document contains copies of training materials supplied to us during the training sessions. These materials were produced for use within a lecture on a particular date and should be treated accordingly. They do not contain definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Neither LawWorks nor the person or people who wrote the materials accept any responsibility or liability for the use of these notes. They are provided as a service to our members.
HOUSING LAW KEY POINTS FOR THE VOLUNTARY ADVISER These are only lecture notes. They do not contain definitive advice. They should not even be used as the basis for giving definitive advice without checking the primary sources.
HOUSING LAW; KEY POINTS FOR THE VOLUNTARY ADVISER COMMON LAW; 4 CLASSES OF OCCUPATION KNOWN TO COMMON LAW 1. Owner/occupier - included in this category are: The unmortgaged freeholder - has the fullest rights of occupation and protection. The mortgaged freeholder The long leaseholder. 2. Trespasser - has the least rights of occupation i.e. a person who occupies without any permission to do so. (NB: Permission can be given by anyone who has authority e.g. the freeholder or the tenant) 3. Licensee - licence means permission Licensee - somebody who has been given permission to occupy premises. Persons in this category include family/friends/residents in hotels, hostels, old peoples homes and persons in bed and breakfast accommodation. A person is a lodger if a landlord provides attendance/services. If a client comes into the advice surgery with a document purporting to be a licence agreement, it is important to check the true nature of the arrangement. Street -v- Mountford [1985] AC 809. This case sets out the hallmarks of a tenancy; Exclusive occupation of residential accommodation. Payment. Term (i.e. period or length of tenancy) A licence comes to an end when permission to occupy is withdrawn. The person entitled to possession can re-claim possession. NB: If a person has been granted a fixed term licence, the licence ends on expiry of the fixed term. No notice is required.
NOTICE If a person has been granted a periodic licence, the common law requires that reasonable notice to determine licence is given. Protection from Eviction Act 1997 This Act requires written notice of a minimum period of four weeks. The notice must contain specified information. Protection from Eviction Act applies to all licences except what is known as an excluded licence. In most circumstances it would be necessary to obtain a Court Order for possession before evicting a former licencee. 4. Tenant - A Tenancy is the normal arrangement by which one person comes to occupy premises owned by another, usually in exchange for a monetary payment. The exception to this may be, for example a service tenancy. There are two forms of tenancy: (a) Periodic Tenancy - e.g. the tenancy runs from week to week. (b) Fixed Term Tenancy - the tenancy is for a specified period of time. NB: There is no requirement for a tenancy to be in writing. The four essential qualities of a tenancy are: (iv) Identifiable parties (i.e. a landlord and tenant). Identifiable premises. A period of tenancy. Exclusive possession. If any element is missing, it is not a tenancy and the agreement may therefore be a licence. PRIVATE SECTOR TENANCIES Rent Acts/Housing Act 1988/Housing Act 1996 Key date: 15.1.89
General Pre 15.1.89 - Protected or statutory tenancy - Exceptions: Resident landlord or holiday let Post 15.1.89 - Assured/assured shorthold tenancy RENT ACTS - CONTRACTUAL/STATUTORY TENANCY 1. Check contractual tenancy has been brought to an end either by: (a) (b) Expiry of fixed term Service of valid notice to quit /or Notice of Increase of rent. If contractual tenancy has not been brought to an end, client will have absolute defence to possession proceedings (unless forfeiture). Where the contractual tenancy has come to an end, the tenant will have a statutory tenancy. Notice to Quit - in writing Protection from Eviction Act 1977 - not less than 4 clear weeks before date on which it is to take effect. Notice must contain prescribed information. Common Law - The Notice must comply with any express provisions in the tenancy agreement. The main requirement is that the Notice to Quit should state with certainty when the Notice expires. Time between date on which notice is served and date on which notice purports to take effect should be at least as much as rental period of tenancy. e.g. if the tenancy is a monthly tenancy, the Notice to Quit must give at least one months notice. NB: It is extremely important that the Notice expires on the correct day. e.g. if the tenancy began on the 1st day of the month or if rent is payable on the first day of each month, the Notice must expire on the 1st or last day of the month. If it does not, the Notice to Quit will be invalid. Lynda Nightingale