"Common Law" rights for excluded occupiers

[VGkK]

Hi!

I have recently taken an interest in the legal position of landlord and tenant in case of a live-in landlord granting an occupier, who in the eyes of the Housing Act would be an excluded occupier, additional protection from eviction, e.g. through a "Common Law" tenancy agreement.

Now, the comments I found on the web can essentially be divided into two categories:
1) One group suggests that the "Common Law" tenancies are meaningless, since all that matters is that the occupier is excluded. He can be asked to leave at any time (subject to reasonable notice).
2) Another group of commentators suggests that whatever landlord and tenant may agree in writing binds both parties since non-Housing Act tenancies are governed by the plain wording of the tenancy agreement.

Of course there are very few shades of grey in between these positions. I wonder which is actually correct? Case law??


Thanks!

[Crazy council]

Re: "Common Law" rights for excluded occupiers

a tenancy is a tenancy

The difference in the circumstances you describe only involve the landlord being in resident. It gives the LL a few more options over notices

who in the eyes of the Housing Act would be an excluded occupier, additional protection from eviction, e.g. through a "Common Law" tenancy agreement.

I dont know what an excluded occupier would be in this case, am presuming the house is a HMO, and the agreement is an AST ( hes not just a lodger ).

Any tenant has standard protection from eviction,

Point 2, i think is wrong,
point 1, Wrong by the way its worded, no common law tenancy as sutch Assured shorthold and protected tanancys, parts of the housing acts . Further, only under very certain curcs, ( legal a lodger, or under specific tannancy agreement, like students, NHS placements etc ), can a tenant be given short notice to quit by a LL,

If your clear about you question i can maybe help a bit better.

[seduraed]

Re: "Common Law" rights for excluded occupiers

I believe that a lodger can be given short notice to quit if the landlord is resident in the property and the relationship has broken down . Large areas of the housing act do not apply to resident landlords.

[VGkK]

Re: "Common Law" rights for excluded occupiers

You sure an occupier can hold an AST in an HMO with a resident landlord? I believe the HA 1988 excluded that possibility? The "tenancy" cannot be an AST, so it must be "something" else which is not governed by the Housing Acts.

A tenancy or licence can be excluded s. 3A(2) & (3) Protection from Eviction Act 1977, which means that the legal protection offered by said Act does not apply to all tenancies.

What I am trying to pin down is whether it is possible for an excluded occupier to claim protection from eviction not under the 1977 Act, but at Common Law (if there is an agreement stating that the landlord must secure a court order in order to secure possession).

The following would suggest that an excluded occupier should be able to seek protection from the civil courts (where there exists a Common Law tenancy agreement), even though the eviction, though unlawful under civil law, would not be an offence under the Protection from Eviction Act 1977:

www.crisis.org.uk/data/files/Common_Law_Tenancy.docx
https://www.legalhelpers.co.uk/helps...wtenancies.pdf

[Crazy council]

Re: "Common Law" rights for excluded occupiers

You sure an occupier can hold an AST in an HMO with a resident landlord

Yes, for it to be a lodger, it has to be specificaly set up like that, with a number of other circumstances lining up. otherwise, there a tenant.

What I am trying to pin down is whether it is possible for an excluded occupier to claim protection from eviction

Whats an excluded occupier ?????? and what eviction notice is in effect ?

---Updated--------

If the person has a tenancy contract, or anything reasonable considered a contract, then the housing act would apply, but the notice would not necacerraly be longer.
Also, if the house is a HMO, then hes not a lodger ( i think ) hes a tenant , If he was a lodger only with a rent book, and nothng that could be construed as a contract. Then they would be an excluded tenant.

iether way, very hard to fight

[VGkK]

Re: "Common Law" rights for excluded occupiers

Thankfully I am not presently in that position (in the past I was!), yet my reading of s. 1(1)(c) HA 1988 in combination with Schedule 1(10) HA 1988 is that any form of Assured Tenancy is impossible as long as there is a resident landlord living in the same building. That's why I am suggesting that the (excluded) occupier may still have rights flowing from a "Common Law" tenancy not governed by the Housing Acts or the Protection from Eviction Act 1977. Of course not every excluded occupier will have such an agreement!

So what is an excluded occupier?
s. 3A(2) Protection from Eviction Act 1977 says that:
(2)A tenancy or licence is excluded if—
(a)under its terms the occupier shares any accommodation with the landlord or licensor;and
(b)immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.


Accommodation is defined as:
(a) “accommodation ” includes neither an area used for storage nor a staircase, passage, corridor or other means of access;
(b) “ occupier ”means, in relation to a tenancy, the tenant and, in relation to a licence, the licensee; and
(c) “purpose-built block of flats ” has the same meaning as in Part IIIof Schedule 1 to the Housing Act 1988;


This is why an excluded occupier has no protection under the Protection from Eviction Act 1977.

[Crazy council]

Re: "Common Law" rights for excluded occupiers

I think types of tenant, tenancy and related matters were set in with the housing acts, starting 1996, and all additions forward.

any form of Assured Tenancy is impossible as long as there is a resident landlord living in the same building

Nope, although, if its a family home, or room in one ( not usualy used to rent ) then the person is a lodger, and excluded, but, nearly every other circumstance, would meen its was a tenancy.

[VGkK]

Re: "Common Law" rights for excluded occupiers

I am not saying I am right and you are wrong. This is clearly a grey area!

But I really don't think it is possible to acquire an Assured Tenancy in case of a resident landlord:

"Housing Act 1988 SCHEDULE 1
Tenancies Which Cannot be Assured Tenancies

Resident landlords

10(1)A tenancy in respect of which the following conditions are fulfilled—

(a)that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and

(b)that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also forms part of the flat; or

(ii)in any other case, also forms part of the building; and

(c)that, subject to Part III of this Schedule, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also formed part of the flat; or

(ii)in any other case, also formed part of the building; and

(d)that the tenancy is not one which is excluded from this sub-paragraph by sub-paragraph (3) below.

(2)If a tenancy was granted by two or more persons jointly, the reference in sub-paragraph (1)(b) above to an individual is a reference to any one of those persons and if the interest of the landlord is for the time being held by two or more persons jointly, the reference in sub-paragraph (1)(c) above to an individual is a reference to any one of those persons."

(3)A tenancy (in this sub-paragraph referred to as “the new tenancy”) is excluded from sub-paragraph (1) above if—

(a)it is granted to a person (alone, or jointly with others) who, immediately before it was granted, was a tenant under an assured tenancy (in this sub-paragraph referred to as “the former tenancy”) of the same dwelling-house or of another dwelling-house which forms part of the building in question; and

(b)the landlord under the new tenancy and under the former tenancy is the same person or, if either of those tenancies is or was granted by two or more persons jointly, the same person is the landlord or one of the landlords under each tenancy."


So it seems that in case of a resident landlord, one cannot have an Assured Tenancy, yet it can still be a tenancy, albeit one outside the scope of the Housing Act!

Being outside the scope of the Housing Act 1988 does not necessarily mean that the tenancy falls outside the Protection from Eviction Act 1977 (as in the case of high-value tenancies with a rental value of £25,000+ per year - s. 2 SCHEDULE 1 - Housing Act 1988).

These tenancies clearly fall outside the scope of the Housing Act 1988, yet the Housing Act seems to suggest that they are (Common Law?) tenancies nonetheless!

I also had a look at this: http://www.merton.gov.uk/housing/hou...roceedings.htm

"Unprotected tenancies" and "excluded occupiers" are seemingly not regulated by the various Housing Acts, but so are "high value tenancies". So, an excluded occupier has no statutory protection. Still, I am led to believe that even an excluded occupier, while excluded from legal protection under the Protection from Eviction Act 1977, may still sue the landlord for damages for breaching the (Common Law) tenancy agreement (assuming that the eviction happened prior to the end of the fixed term).

[Crazy council]

Re: "Common Law" rights for excluded occupiers

Hi

Remember the housing act hs been added to and updated, 1996, and 2004 and recently.

To clear up, and excluded tenant, would be a tenant is a house thats owned by one of the occupiers as there main home, ( and was the day the tenant moved in )

But, If its a HMO ( licences or not ) ( more than 1 extra tenant, or setup as a hmo )
If there has been any type of AST given, or general paperwork indicating a tenancy

Then they are standard AST with some extra options for both the LL and tenant

2) Another group of commentators suggests that whatever landlord and tenant may agree in writing binds both parties since non-Housing Act tenancies are governed by the plain wording of the tenancy agreement.

any paperwork would be binding, and the basic protections of the housing acts would be enforce, regardless if they are listed properly or not.

There is also a difference between an assured tenacy, and an assured short-hold tenancy..

What I am trying to pin down is whether it is possible for an excluded occupier to claim protection from eviction

what does the eviction notice state ? what type of notice and how long.