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5.12 Contractual Or Common Law Tenancies

Provided the proper procedure is followed, evicting contractual/common law tenants should not be difficult. However, as the rules are different for this type of tenancy from others mentioned here, legal advice should be sought.

 

Contractual tenancies include:

 

  • lets of residential properties to companies (but not business premises) lettings at a rent of over £100,000 or lettings by some resident landlords.

 

Holiday lets and university lettings to students also fall into this category.

 

Note that some resident landlords may set up contractual tenancies and others will only give a licence to the occupier. Although these occupiers are ‘excluded occupiers’ for the purposes of the Protection from Eviction Act 1977, and no court order is required to evict them, the Criminal Law Act 1977 still applies. This states that nobody should use or threaten violence to gain entry to someone’s room if there is someone present who is opposed to the forced entry – they risk criminal proceedings if they do.

 

5.12.1 If The Common Law Tenant Is In Arrears Of Rent

 

It is possible to bring court proceedings for possession on the basis of nonpayment of rent and in this event there is no requirement to serve a section 146 notice on the tenant first (although it is advisable to warn them that possession proceedings are imminent if they do not pay). However, the judge has powers to suspend or stay the order as they think fit. The terms of the contract should specify when and how the tenancy can be terminated.

 

Once court proceedings have been issued, rent should not be demanded nor accepted but the landlord can ask for and receive ‘damages for use and occupation’ of the property (which can be the equivalent to the rent).

 

If the common law tenant is not in arrears of rent

 

It is not normally possible to evict a tenant during the fixed term unless there is a break clause in the tenancy agreement or the tenant breaches the terms of that tenancy agreement and the agreement states it can be terminated for breach. It is technically possible to seek possession for breaches of the tenancy agreement other than non-payment of rent, but this is not often successful. Usually, a notice under section 146 of the Law of Property Act 1925 is required, giving the tenant notice that they are in breach of the tenancy conditions and an opportunity to put things right, if possible. Legal advice should be sought from a solicitor experienced in eviction work to do this properly.

 

Contractual/common law tenancies do not have the same ‘statutory periodic’ run-on that the Housing Act 1988 assured and assured shorthold tenancies do. It is possible for these types of tenancy to contain a ‘continuation clause’ basically ensuring the tenancy does not end upon expiry of the fixed term but instead continues as a contractual periodic tenancy. Where no such clause exists, at the end of a fixed term, the landlord will be entitled to apply for a possession order. If possession is not required, a specific renewal should be agreed where there is no continuation clause.

 

If the tenancy is a periodic tenancy (either from the outset or after a fixed term has ended with a continuation clause) the landlord can end the tenancy at any time by serving a ‘Notice to Quit’ (a section 21 notice is often referred to as a notice to quit but this is not correct and not the document referred to here). This must give a notice period of no less than four weeks (but longer if the rent is payable monthly or more). The notice must expire on the last day or the first day of a period of the tenancy and must be in writing and must contain prescribed information. Once this has expired, if the tenant has not vacated, the landlord can apply to the court for an order for possession which they are entitled to as of right. A landlord does not need to give any reason for asking for possession.

 

Once the notice to quit has expired, the tenancy will have ended and rent should not be demanded nor accepted but the landlord can ask for and receive ‘damages for use and occupation’ of the property (which can be the equivalent to the rent).

 
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