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There’s a surprisingly common misconception that if you have rented a residential property for a long time, you acquire more rights or greater security.
Tenants’ rights after 10 years
In this regard, people often have in mind a number of years – typically seven or ten – after which they assume such rights arise. However, with only a few exceptions, your rights as a tenant remain exactly the same, irrespective of your length of occupation. Below, I have summarised those exceptions.
Rent Act 1977
One exception is for tenants who were already in occupation of their property when the Housing Act 1988 came into force on 15 January 1989. For that ever-dwindling number of people, the Rent Act 1977 still applies to their tenancy, giving them greater rights. These protected tenants have:
- the right to register for a ‘fair rent’, which is often significantly lower than the market rent;
- greater long term security of tenure, so are harder to evict, and
- the right to pass the tenancy on to their spouse and, in some circumstances, to family members when they die.
Part IV Housing Act 1985
Where the criteria set out in Part IV of the Housing Act 1985 are met, tenants of social landlords such as local authorities have secure tenancies. They are in essence a tenancy granted for the lifetime of the tenant and they cannot be evicted unless they are in breach of the terms of the tenancy agreement.
Less frequently encountered types of tenancy with a degree of security are:
- Introductory tenancy: a probationary tenancy for twelve months sometimes granted to a tenant in social housing. At the end of the trial period, an introductory tenant becomes a secure tenant if they satisfy the conditions set out in their tenancy agreement.
- Flexible tenancy: a form of secure tenancy which is granted for a fixed term of not less than two years, and more commonly five years. A prospective tenant may request a review of the length of the tenancy offered.
- Protected shorthold tenancy: created by the Housing Act 1980, are tenancies that were granted on or after 28 November 1980 and before 15 January 1989. Among other conditions, the tenancy had to be for a fixed term of between one and five years. If the conditions were satisfied, the tenant has the protection of the Rent Act 1977 after the end of the Rent Act tenancy, provided they do not break the conditions of the tenancy. However, at the end of the period, the landlord has the right to regain possession of the property.
Since 28 February 1997, the vast majority of tenancies have been Assured Shorthold Tenancies (ASTs). So long as certain conditions are satisfied, a tenancy will automatically be an AST unless there is a written document expressly stating it is the parties’ intention not to create one. Those conditions are:
- The property is residential.
- The tenant is an individual rather than a company.
- The tenant occupies the property as his only or principal home.
Between 15 January 1989 and 28 February 1997, it was necessary for a landlord to serve a section 20 notice on a tenant prior to the grant of the tenancy in order to create an AST and thus benefit from the greater flexibility to evict the tenant without needing to prove grounds. If the notice was not served, or evidence of it being served has not been retained, the tenancy is likely to be treated as an assured (i.e. not assured shorthold) tenancy. This means it can only be ended if certain limited grounds are met – in essence, the tenant is in breach of the terms of the agreement.
What is a sitting tenant?
The term ‘sitting tenant’ is also sometimes misinterpreted to mean a tenant with greater rights. Certainly, if they have been in occupation for many years, there is a greater chance they will fall into one of the more secure categories set out above. However, in most cases, a sitting tenant is simply one who occupies a property that their landlord decides to sell.
On completion, the buyer will also take ownership of the tenancy agreement which was put in place by the seller. In almost every case the tenancy will be an Assured Shorthold Tenancy, which means the new landlord may have the right to evict the tenant by issuing a Section 21 notice.