Tenancy Agreements – Are you clear which type you have?

Whether you’re a landlord or a tenant, it’s important to know which type of tenancy agreement you have in place – and why.

16 different types of Tenancy Agreement …….

So is it an Assured Shorthold Tenancy, Assured Tenancy, Protected Tenancy, Secure Tenancy, Common Law Tenancy, Demoted Tenancy, Introductory Tenancy, Protected Shorthold Tenancy, Family Intervention Tenancy, Replacement Tenancy, Tied Accommodation Tenancy, Periodic Tenancy, Statutory Periodic Tenancy, Bare Licence, Excluded Licence or Contractual Licence?

Yes, really. There are 16 different types of tenancy and licence agreement, each with their own sets of requirements. For example, if you want to evict an Assured Shorthold Tenant, there are 17 grounds for doing so. But there are 20 grounds for evicting Secure Tenants. There are also different notices that have to be served – eight at last count. And if you get something wrong, you have to go back to the beginning and start again.

The difference between a Tenancy and a Licence

A Tenancy is a legal framework that can be transferred from one party to another. A tenant is entitled to a possession order before being forced to leave a property.

A licence is just a permission to occupy, and there are no rights to transfer the licence or sub-let it. The landlord simply has to withdraw permission from the occupier to stay there. However, for contractual licences a court order is necessary and excluded licences demand that ‘reasonable notice’ has to be given.

Criteria which decide whether an agreement is a Tenancy

Most importantly, it doesn’t matter what the landlord calls the agreement.

The case of Street v. Mountford 1986, established the basic conditions for creating a tenancy at common law. The decision in this case stated that for a tenancy to exist three elements had to be in place:

• rent – (or service, if accommodation is provided with a job)
• a clear period of time (eg weekly or monthly)
• the occupier must have sole use of the premises

If these three factors exist, a tenancy exists – regardless of what either the landlord or the tenant decide to call it.

Assured Shorthold Tenancies

Assured Shorthold Tenancies (ASTs) came into force on January 15th 1989. And from February 28th 1997, if no written agreement is in place, it is presumed the tenancy is an AST.

However, if a tenant moved in between January 15th 1989 and February 29th 1997, a previous type of tenancy, called a Section 20 notice, applies – this was a special type of notice that had to be served to create an AST, in the days before ASTs were the default tenancy. Tenants who moved in between January 15th 1989 and February 28th 1997, under a Section 20 notice, will have greater security of tenure than those with a more formal tenancy agreement.

If you’re not sure, ask for advice

Clearly, tenancies are a complex area and landlords are unlikely to have the specialist knowledge needed to negotiate their way through this potential minefield. Today, ASTs are the most common form of Tenancy Agreement but you should seek expert advice. There’s more information on the landlords resources area of our website, but please feel free to ask our lettings team for more detailed information.