Private rented accommodation is often the only housing option for people. A lot of different factors can affect what rights a tenant has.
If you are asked to leave a private rented property, it is important that you get advice on your rights before deciding on your next course of action. As housing has been subject to regulation for many years, this page can only give a brief summary of your rights and options.
There are various forms of tenancies which have been established over many years. Often, the kind of tenancy a person has will depend on when they moved into the property and the laws operating at that time. Since 28 February 1997, the vast majority of new tenancies have been Assured Shorthold Tenancies under the terms of Section 19A Housing Act 1988 (as amended).
A few basic rules about tenancies:
- There is nothing in law that says a tenancy agreement must be in writing. A tenancy can be established on a handshake and by the exchange of rent.
- There is nothing in law that says a tenancy must be for a fixed term. Tenancies can be periodic in the sense that they can run on a week to week or month to month basis.
- If a fixed term tenancy comes to an end, the tenancy does not end but becomes a periodic tenancy unless notice has been served to end the tenancy.
What Kind Of Tenancy Have You Got
Housing law is very complex and subject to change as the Courts interpret legislation. It is therefore essential to get information on your rights if you feel the landlord may want you to leave accommodation. Generally:
- If you took on a tenancy after 28 February 1997, you will probably be an assured shorthold tenant.
- If you took on a tenancy between 15 January 1989 and 27 February 1997, you will either be an assured or an assured shorthold tenant.
- If you took on a tenancy before 15 January 1989, you are likely to be a regulated tenant
Assured shorthold tenancies
Assured shorthold tenancies are the most common form of private sector tenancy. The reason for this is because a landlord can charge a market rent for the property and the tenant has little protection from eviction.
If you have an assured shorthold tenancy, the landlord must serve you with at least two months notice in writing. There are some legal requirements concerning the notice, but it need not be in any proper, legal form. Often landlords give tenants 8 weeks notice. This would not be valid as the requirement is for at least two calendar months notice to be served.
Once the notice expires, the landlord must apply to the court for a possession order. The landlord cannot evict the tenant without a possession order. If a landlord applies to the court, s/he must only prove:
- That the tenancy is an assured shorthold tenancy
- That proper notice has been served
- That the notice has come to the attention of the tenant
- If the landlord can prove these facts, the court MUST order the tenant to leave the property. If the tenant is ordered to leave, s/he will normally have to pay the landlord's court and solicitor's costs, if applicable.
Assured tenancies are rarely created these days as the law states a new tenancy will be an assured shorthold tenancy unless the parties agree otherwise. If a landlord offered a tenant an assured tenancy, the tenant would be advised to take it immediately because an assured tenant has considerable security and some control over the rent that can be charged.
If you have an assured tenancy, your landlord can only evict you if he has served you with a Notice of Seeking Possession in the proper form and that he can prove one of the "grounds" for possession listed in the Housing Act 1988.
Therefore, if the landlord wants the tenant to leave, he has to prove to the court that he is entitled to possession. Some of the grounds are mandatory (this means if it is proven, the court must order the tenant to leave) and some are discretionary (this means that even if the landlord can prove the ground, the court does not have to order the tenant to leave).
If you have an assured tenancy and the landlord wants you to leave under any circumstances, please seek advice immediately.
Regulated tenancies are even more scarce because no new regulated tenancies could be created after 15 January 1989. A regulated tenant has the maximum protection in the private sector and also has the right to a fair rent.
If a landlord wants a regulated tenant to leave, s/he must serve a Notice to Quit in the proper legal form. Once the notice expires, the landlord must apply to the court and must prove a "case" for possession under the Rent Act 1977. Again, the court has the discretion not to order the tenant to leave the property.
Some tenancies are unprotected in the sense that they are not regulated by any Housing or Rent Act. The most common form of unprotected tenancy is where the tenant lives in the same house as the landlord but does not share living accommodation. For example, a house may be converted into two or more flats and the landlord lives in one of them and has his own kitchen, bathroom and WC.
In this situation, the landlord must serve Notice to Quit, in the proper legal form, and bring court proceedings.
Protection From Eviction Act 1977
Under the terms of this Act, it is a criminal offence for a landlord, agent or any person to:
- Evict a residential occupier without a Court Order
- Harass an occupier out of the accommodation
Certain occupiers do not need to have an order from the court to be evicted. Such occupiers include people who share living accommodation with their landlord or people who occupy accommodation let for the purpose of a holiday.
If you have experienced problems with your landlord or property agent, you can contact us for further advice and assistance on 01255 686617. You should also seek your own legal advice from a solicitor as you may be entitled to compensation and you can get a Court Order to stop harassment or to allow you back into your lawful home. You may be entitled to Legal Aid through Community Legal Advice. If you consult a solicitor, you may want to check if they have a "franchise" for carrying out housing related work.
The Council is often approached by people who have been asked to leave accommodation because of rent arrears. There are some options you can consider if you find yourself in this situation.
- Do not ignore the problem. Contact your landlord and explain your difficulties.
- Ask your landlord to confirm how much money you owe.
- Draw up a personal budget outlining your weekly or monthly expenditure so you know how much you can afford to pay each month to catch up.
- Claim Local Housing Allowance if you are on a low income. Many people think that they will not be entitled to Local Housing Allowance and Council Tax Benefit because they are working. If you do not apply, you will not find out! If you have been served with notice and you are waiting for your claim to be assessed, contact the Benefit Department to explain the situation.
- Get advice immediately. In some cases, if the landlord applies to the Court, the Court could make a suspended possession order on the basis that you will pay the current rent and an amount on top each week or month to clear the arrears over time.
If you have been issued with a notice seeking possession by your landlord please click here to complete our homelessness advice form. Once we receive this we will contact you to offer you advice. This may be signposting you to another agency or we may offer you an appointment with a Housing Options Officer.
If you’ve fallen behind with your rent and fear losing your home - it’s never too late to seek advice and get back on track. One Support provide free housing related support with the aim of preventing homelessness. They can support you with debts, arrears, budgeting skills, benefits and tenancy issues. Contact One Support on 0300 123 1921 and they could help prevent you from losing your home. For further information www.onehousing.co.uk/essex-floating-support-service
The information on this page is only intended to give a brief overview of the law and your options. Each person's situation will have its own factors and the advice for one person may not be appropriate for another. Please do not hesitate to seek advice if you become threatened with homelessness.