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Wrapped: Property and Conveyancing > 16. Short-term tenancies > Flashcards

16. Short-term tenancies Flashcards

1
Q

What are the two important pieces of regulation for short-term tenancies?

A

Rent Act 1977
Housing Act 1988

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2
Q

When did the Housing Act 1988 come into force?

A

15 January 1989

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3
Q

State and describe the two regulated tenancies?

A

Protected tenancy - meets s1 requirements.

Statutory tenancy - arises on termination of protected tenancy, meets s2 requirements.

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4
Q

How long do the protected and statutory tenancies last?

A

Protected tenancy - Only lasts for duration of contractual tenancy

Statutory tenancy - Only terminates by court order.

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5
Q

What are the three requirements of a protected tenancy?

A
  • Meets s1 requirements
  • Complies with s4 rateable value and rental limits
  • Not excluded by ss5-16
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6
Q

What is the definition of a protected tenancy outlined in s1 RA 1977?

A

A tenancy under which a dwelling-house is let as a separate dwelling.

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7
Q

In court, are protected tenancies judged from the date of the issue or the date of the proceedings?

A

The date of the proceedings.

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8
Q

Explain what ‘tenancy’ means from the definition of a protected tenancy, ‘A tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling’?

A

The tenancy must possess the characteristics of a lease:
- fixed commencement date
- certain duration
- exclusive possession

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9
Q

Can the following types of tenancies be a protected tenancy?
- sub-let
- tenancy at will
- tenancy at sufferance
- tenancy by estoppel

A

Yes, these can all be protected tenancies.

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10
Q

Explain what ‘a dwelling-house’ means from the definition of a protected tenancy, ‘A tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling’?

A

The dwelling-house must:
- be a house, physically capable of being a dwelling
- be occupied as the claimant’s home

E.g. cannot be a block of flats that have all been sub-let.

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11
Q

The word ‘let’ in the definition of a protected tenancy means that rent must be payable in order for the tenancy to qualify. True or false?

A

True - rent must be payable.

Exception: service tenants.

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12
Q

What is the exception to the rule that rent must be paid in order for a protected tenancy to fall under the Rent Act 1977?

A

Service tenants whose tenancy is in return for performance of a service. This will only be covered if a quantifiable amount is deducted from their wages for accommodation.

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13
Q

Can the Rent Act 1977 protected tenancies be business tenancies?

A

No, they must be residential and that can be express or implied.

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14
Q

What is the rateable value limit and is it still relevant?

A

A limit on the notional yearly rent that a property could be let for.

No, it was abolished in 1990.

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15
Q

What is the ‘appropriate day’?

A

If the property existed before 23 March 1965, this is the appropriate day.

If the property existed after 23 March 1965, the appropriate day is when the premises were valued for the purpose of the rates.

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16
Q

What are the excluded categories from a protected tenancy, from ss5-16 and s24 RA 1977?

A

s5: tenancies at a low rent
s6: dwelling-houses let with other land
s7: board or attendance tenancies
s8: student lets
s9: holiday lets
s10: agricultural holdings
s11: licensed premises
s12: resident landlords
s13-s16: tenancies with public/Crown landlords
s24: business tenancies

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17
Q

What is the 7-step process followed to see whether something is a protected tenancy?

A
  1. Created before 1989?
  2. Counts as a tenancy? (exclusive poss etc)
  3. A dwelling-house?
  4. Let for rent?
  5. Let as a separate dwelling?
  6. Complies with rateable value limits?
  7. Not excluded?

If yes to all, it is a protected tenancy.

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18
Q

What counts as a tenancy with low rent?

A

Pre-1990: The rent cannot be less than two-thirds of the rateable value of the property

Post-1990: The rent cannot be less than £1,000 a year in London or £250 a year elsewhere.

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19
Q

What does ‘dwelling-houses let with other land’ mean?

A

Land let with over 2 acres counts as being let with other land.

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20
Q

What does ‘tenancies providing for payment for board or attendance’ mean?

A

Tenancies with service personal to the tenant, provided by the landlord, e.g. removing tenant’s rubbish, providing food.

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21
Q

What is meant by a ‘licensed premises’?

A

Pubs

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22
Q

Why might a resident landlord mean a tenant cannot have a protected tenancy?

A
  1. There may be no exclusive possession, so no lease exists
  2. Sharing a living room may mean there is no separate dwelling-house.
  3. Could fall in s12 exception of resident landlord.
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23
Q

What are the 3 requirements of a statutory tenancy, as outlined in s2 RA 1977?

A
  1. there was a tenancy that was protected at the date of its termination
  2. the tenant was a protected tenant
  3. the tenant continues to occupy the dwelling-house as their residence.
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24
Q

Do the terms of a statutory tenancy change from the protected tenancy terms?

A

No, the statutory tenancy is on the same terms as the original lease.

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25
Q

How might a landlord evade the security of tenure offered by RA 1977 (a protected tenancy turning into a statutory one)?

A

By granting a lease to a company which the tenant owns, instead of granting one to the individual.

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26
Q

Can a protected tenancy pass under succession? Why?

A

Yes it can, because it is a property right in land, which passes on the death of the existing tenant to their successors or under their will.

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27
Q

Can a statutory tenancy pass under succession? Why?

A

Yes, but only if it complies with the requirements of Sch 1 RA 1977, as it is a personal right.

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28
Q

How would a landlord go about gaining possession of a tenancy under RA 1977?

A

If it is protected, the landlord must terminate it by notice.

Then, when it is a statutory tenancy, the landlord must get a court order for possession.

The court order must be sought on establishing grounds (cases).

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29
Q

What are the two types of cases (grounds) for possession in RA 1977?

A

Discretionary: where the court grants a landlord possession because it is right to do so.

Mandatory: where the landlord makes their case , the court must order possession.

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30
Q

What are the three ways a landlord can get a court order for possession under s98 RA 1977?

A
  1. Suitable alternative accommodation is available and it is reasonable to do so
    OR
  2. A discretionary case applies and it is reasonable to do so
    OR
  3. A mandatory case applies
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31
Q

What type of tenancy is every tenancy granted under HA 1988?

A

An assured tenancy

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32
Q

What are the two types of assured tenancy?

A

An assured tenancy (fully assured)
An assured shorthold tenancy (AST) - a sub-species of assured tenancy

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33
Q

What is a fully assured tenancy?

A

A tenancy where possession can only be granted via court order if a landlord can establish one of the grounds for possession in HA 1988.

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34
Q

What is an assured shorthold tenancy?

A

A tenancy where possession can be either terminated by the landlord serving two months’ written notice, or via court order if a landlord can establish one of the grounds for possession in HA 1988.

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35
Q

Can RA 1977 protected or statutory tenancies still be created?

A

No, not since 1989, with the introduction of the HA 1988.

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36
Q

What are the 3 requirements for HA 1988 to apply to a tenancy?

A
  1. Comply with the definition of an assured tenancy within s1(1) HA 1988
  2. Rental and rateable value limits must not be exceeded
  3. Not be exempted under Sch 1 HA 1988.
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37
Q

What is the definition of an assured tenancy outlined in s1 HA 1988?

A

A tenancy under which a dwelling-house is let as a separate dwelling, as long as:

  • the tenant(/joint tenants) is an individual (not a business, must be a natural person)
  • the tenant occupies the dwelling-house as their principal home (or one of the joint-tenants does)
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38
Q

Is assured status of a tenancy fixed?

A

No, it can change with a change of landlord or circumstances of the tenant.

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39
Q

What are the rateable value limits under HA 1988?

A

Pre-1990: The rent cannot be less than two-thirds of the rateable value of the property and must not exceed £1,500 a year in London or £750 a year elsewhere.

Post-1990: The annual rent cannot exceed £100,000 a year.

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40
Q

What are the exemptions found under Sch 1 HA 1988?

A

para 4: business tenancies
para 5: licensed premises
para 6: agricultural land (2 acres)
para 7: agricultural holdings
para 8: student lets (private lets outside of uni are not excluded)
para 9: holiday lets
para 10: resident landlords
para 11-12: public landlords
para 12ZA: family intervention tenancy (accepting therapy)
para 12A: asylum seekers
para 12B: temporary protection

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41
Q

Can an assured tenancy be acquired via succession?

A

Yes, it can.

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42
Q

How are assured tenancies now created, ?

A

Post-28th Feb 1997, due to Housing Act 1997:

  • any assured tenancy will now automatically take effect as an AST, unless it falls within exceptions set out in Sch 2A HA 1988.
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43
Q

Does the AST need to be for a fixed term or last for longer than 6 months?

A

No, it doesn’t. However, the landlord cannot get possession until 6 months into the AST.

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44
Q

What happens if there is a fixed-term on the AST and it expires?

A

A statutory periodic tenancy will arise.

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45
Q

What can a tenant do if they want something in writing from a landlord about their AST?

A

Request a statement of major terms, including:
- commencement date
- rent and payment date
- any rent review details
- termination date, if fixed term

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46
Q

What if the landlord does not get the written info about the AST to the tenant within 28 days?

A

They may be liable for a criminal offence, with a fine for £2,500.

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47
Q

Are there any requirements for a statutory periodic tenancy to arise after a fixed-term assured tenancy expires?

A

No, unlike statutory tenancies in RA 1977, there are no stipulations.

48
Q

What happens after a periodic tenancy ends, will a statutory periodic tenancy arise?

A

No, the periodic tenancy will continue and termination by the landlord will be ineffective unless the landlord serves notice in accordance with HA 1988.

49
Q

What are the terms of the statutory periodic tenancy?

A

Most terms stay the same, including premises and rent, however, s15 HA 1988 implies a new term stating:
The tenant may not assign, sub-let or part with possession of the dwelling-house subject to the tenancy without the landlord’s consent.

50
Q

Can the landlord unreasonably withhold consent to alienation of the tenancy under a statutory periodic tenancy or an assured period tenancy?

A

Yes, if there is no express provision in the contract, they can. LTA 1927 and 1988 does not apply here, meaning that landlord’s can refuse consent unreasonably and do not need to give their decision in reasonable time.

51
Q

Who is the statutory periodic tenancy deemed to have been granted by?

A

Whoever the landlord was immediately before the end of the term

52
Q

What is the difference between having an express provision to not allowing the tenant to assign/alienate without the landlord’s consent and not mentioning that in the contract?

A

If there is an express provision in the contract, the landlord must comply with LTA 1927 and 1988 and cannot refuse unreasonably and they must give their decision in reasonable time.

If there is no express provision in the contract, the tenant cannot assign/alienate without the landlord’s consent under HA 1988 and they can unreasonably refuse consent and they do not need to give their decision in reasonable time.

53
Q

How would a landlord go about obtaining possession of an assured tenancy under HA 1988 for grounds of possession?

A
  1. Landlord must service notice in accordance with s8 HA 1988.
  2. Landlord must establish one of the grounds for possession in Sch 2 HA 1988.
54
Q

Why would a landlord choose to apply for possession under the Sch 2 HA 1988 grounds instead of serving two month’s notice under s21 HA 1988?

A

Whilst the landlord of an AST is more likely to use the s21 HA 1988 procedure, s21 may not be used during the first six months of any fixed term.

55
Q

What is an s8 notice?

A

A notice informing the tenant that the landlord is seeking to obtain possession of the property under a ground of possession.

56
Q

Does the landlord need to give a s8 notice for possession of a dwelling-house, even if they are applying under a ground for possession?

A

Yes, unless they can give the court a good reason for not doing so.

57
Q

What must be outlined on the s8 notice to the tenant for them obtaining possession under a ground of possession?

A
  • The fact the landlord is bringing possession proceedings
  • The grounds on which they intend to claim possession (very specific)
  • The earliest date for proceedings
  • The latest date for proceedings
58
Q

Which ground can the landlord start the possession process immediately, without a s8 notice?

A

Ground 14: anti-social behaviour

59
Q

Which grounds need at least two weeks’ notice for the s8 notice, before the possession process can begin?

A

Ground 3: out-of-season lettings
Ground 4: student accommodation
Ground 8: rent arrears
Ground 10-13
Ground 14A
Ground 15
Ground 17

60
Q

Which grounds need at least two months’ notice for the s8 notice, before the possession process can begin?

A

Ground 1: landlord requiring possession
Ground 2: repossession by a mortgagee
Ground 5: premises required by a minister of religion
Ground 6: intention to demolish or reconstruct
Ground 7: succession by a tenant not entitled under s17
Ground 7A: anti-social behaviour
Ground 9
Ground 16

61
Q

How long does the landlord have to bring possession proceedings after serving a s8 notice?

A

Within 12 months of the date of service of the notice.

62
Q

Which grounds are mandatory and which are discretionary in HA 1988?

A

Grounds 1-8 are mandatory
Grounds 9-17 are discretionary

63
Q

What is the difference between a mandatory and discretionary ground in HA 1988?

A

If the landlord can establish a mandatory ground, the court must grant an order for possession.

If the landlord can establish a discretionary ground, the court will grant possession if it thinks the order is reasonable.

64
Q

What are Grounds 1-8?

A

Mandatory grounds:

Ground 1: landlord requiring possession
Ground 2: repossession by a mortgagee
Ground 3: holiday let (out of season, >8 months)
Ground 4: student let
Ground 5: premises required by a minister of religion
Ground 6: intention to demolish or reconstruct
Ground 7: succession by a tenant not entitled under s17 (death of tenant)
Ground 7A: anti-social behaviour (criminal under ABCP Act 2016)
Ground 8: Defined (serious) rent arrears

65
Q

What are Grounds 9-17?

A

Discretionary grounds:

Ground 9: suitable alternative accommodation
Ground 10: some rent arrears (unless rent is paid before proceedings)
Ground 11: persistent rent arrears
Ground 12: breach of other obligations
Ground 13: deterioration of the dwelling-house
Ground 14: anti-social behaviour (nuisance, annoyance, immoral or illegal use)
Ground 15: deterioration of the furniture
Ground 16: employee’s residence (ceased to be in employment)
Ground 17: false or misleading statements

66
Q

How many weeks can The County Court stay proceedings for regarding mandatory and discretionary grounds?

A

Mandatory: 2 - 6 weeks
Discretionary: 4 - 6 weeks or indefinitely

67
Q

Can s21 HA 1988 apply to all assured tenancies?

A

No, it only applies to assured shorthold tenancies (ASTs).

68
Q

Do the tenants have to leave on the date on which the s21 notice expires?

A

No, they do not. The next step will be for the landlord to apply for a court order, who must grant possession as long as the s21 notice was valid.

69
Q

For ASTs created after 1 October 2015, what form must be used to serve a s21 notice?

A

Form 6A: Notice seeking possession of a property let on an Assured Shorthold Tenant

70
Q

According to the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, what must the landlord have provided the tenant with in order to be able to serve a s21 notice?

A
  • an energy performance certificate (EPC)
  • a copy of the Gas Safety Certificate for the property
  • a copy of the Department for Communities and Local Government leaflet ‘How to rent’
71
Q

What are the two types of AST deposit schemes?

A

Custodial Deposit Scheme
Insurance Deposit Scheme

72
Q

What can the tenant do if the landlord has not put their deposit in a deposit scheme?

A

Get a court order to get the landlord to comply. The landlord could get fined up to 3 times the deposit.

73
Q

What would happen if the landlord did not put the deposit in a deposit scheme?

A
  1. Fined up to 3 times the deposit
  2. Not be able to claim for possession under s21 HA 1988.
74
Q

What is a custodial deposit scheme? Which landlords use it?

A

The deposit is paid to the scheme provider, who holds the deposit. The payment is released at the end of the tenancy when both parties agree. If there is a dispute, it will be resolved by an ADR or court.

Used by private landlords with a small number of properties.

75
Q

What is an insurance deposit scheme? Which landlords use it?

A

The deposit is retained by the landlord who pays a fixed premium to the scheme provider. The landlord returns the deposit at the end of the tenancy. If not, the scheme will pay any amount found to be owing to the tenant.

Landlord must be a UK resident and it is used by professional landlords with lots of properties.

76
Q

What did the Tenant Fees Act 2019 do?

A

Distinguished between permitted and prohibited payments for tenants.

77
Q

If a landlord or an agent accepts a prohibited payment after 1 June 2020, how long do they have to pay it back?

A

28 days.

78
Q

What are prohibited payments under the Tenant Fees Act 2019?

A

Activities that rely on the condition that the fee needs to be paid, e.g. granting a tenancy, renewing a tenancy.
Also, consideration for providing a reference.

79
Q

Is it prohibited under TFA 2019 for requiring a tenant to be bound by a third-party contract?

A

Yes, unless it is a contract for a utility or communication if it is specified in the lease.

80
Q

What are permitted payments under the Tenant Fees Act 2019?

A

Rent, deposits, default payments, bills (e.g. council tax, TV, phone line)

81
Q

Is a landlord able to charge a higher initial rent and then reduce the rent later, or vice versa?

A

No, the additional amount shall be regarded as a prohibited payment. However, if the lease states that the rent will be varied, this will not be prohibited.

82
Q

How many week’s rent is the deposit on a tenancy with an annual rent of below £50,000?

A

5 weeks rent

83
Q

How many week’s rent is the deposit on a tenancy with an annual rent of above £50,000?

A

6 weeks rent

84
Q

How many week’s rent is the holding deposit?

A

1 week’s rent

85
Q

Can the landlord/agent take two holding deposits for a single property?

A

No, only one, even if there are joint tenants.

86
Q

How long is the ‘deadline for agreement’ after the holding deposit is taken?

A

15 days.

87
Q

If the contract doesn’t go ahead, how long does the landlord have to pay back the holding deposit?

A

7 days.

88
Q

Can the landlord/agent change on variation, assignment or novation of a tenancy?

A

Yes, but they cannot charge more than £50, or the reasonable costs of the person to whom the payment is to be made, otherwise the rest will be prohibited.

89
Q

How much could the landlord/agent get fined with if they have breached the prohibited payment rules?

A

Up to £5,000 for first time.
Up to £30,000 and a criminal sentence if done again within 5 years.

90
Q

Where can the landlord appeal regarding prohibited payments?

A

The FTT

91
Q

What can the landlord not do if they have received a prohibited payment which hasn’t been repaid?

A

They cannot serve a s21 notice. If it is the agent who has received the prohibited payment however, then they can serve the s21 notice.

92
Q

What does the Housing (Wales) Act 2014 do?

A

Regulates private rented housing and helps the homeless/gypsies/travellers, as well as setting standards for local housing authorities.

93
Q

Who must all Welsh private landlords register themselves and their property with from 2015?

A

Rent Smart Wales (licensing authority for landlords for Wales)

94
Q

Do Welsh private landlords need to be licensed?

A

Yes, under s6 and 7 H(W)A 2014, in order to

  • do viewings
  • gather evidence for prospective tenants
  • preparing a tenancy agreement and an inventory
  • collect rent
  • be the primary point of contact
  • make arrangements for repairs
  • serving notice to terminate a tenancy
95
Q

Does a Welsh letting agent need a licence?

A

Yes, they do.

96
Q

Can a Welsh landlord/letting agent issue a s21 Housing Act 1988 notice if they aren’t registered?

A

No, they can’t.

97
Q

What does the Renting Homes (Wales) Act 2016 do?

A

It replaces the assured tenancy regime under the Housing Act 1985 and 1988. Tenancies held under the Rent Act 1977 are unaffected.

98
Q

What are the two types of occupation contract from Renting Homes (Wales) Act 2016?

A

Secure contract: Social housing contracts
Standard contract: Similar rights to assured tenancies

99
Q

Under Renting Homes (Wales) Act 2016, what will tenants be known as going forward?

A

Contract holders.

100
Q

What has the ‘no-fault’ notice period moved to?

A

It has moved from 2 months to 6 months notice.

101
Q

What are right to rent checks?

A

Under Immigration Act 2014, right to rent checks look at the immigration status of a prospective tenant.

102
Q

Are right to rent checks required for the following?
Lease
Licence
Sub-lease
Sub-tenancy
Lodger

A

Yes to all.

103
Q

How much will a landlord be fined if there is a breach of the Immigration Act 2014?

A

The fine is on a per tenant basis.
First breach = £1,000
Following breacher = £3,000

So if two tenants were in breach, £4,000 fine.

104
Q

What are the two statutory excuses in s24 Immigration Act 2014?

A

The prescribed requirements were complied with before the residential tenancy agreement was entered into, or a person acting as the landlord’s agent was responsible.

105
Q

What are the prescribed requirements for right to rent checks under Immigration Act 2014?

A

A landlord must:
- conduct an initial right to rent check
- conduct follow up checks where appropriate
- report to Home Office if an occupier no longer has a right to rent.

106
Q

What will happen if a landlord/agent are renting property to those who do not have a legal right to remain, or fail to report to the Home Office?

A

They will be guilty of a criminal offence under the Immigration Act 2014.

107
Q

What is the Renters Reform Bill?

A

It will abolish assured tenancies for periodic tenancies and remove s21 in order for landlords to have to give a reason to evict.

108
Q

What must the seller provide to the buyer if an existing tenant is in place?

A

An Energy Performance Certificate.

109
Q

What must a seller alter on the contract of sale if they are selling a property with an existing tenant in place?

A

Special condition 4 - changed from a property being sold with vacant possession to ‘this property is sold subject to the following leases and tenancies: etc’

110
Q

What might the buyer ask to include in a contract if they are buying a property with an existing tenant in place?

A

The buyer may wish to include provision in the contract prohibiting the seller from agreeing a further tenancy of the property between exchange of contracts and completion.

111
Q

What additional steps will the buyer’s conveyancer need to carry out in connection with the tenant if buying a property with an existing tenant in place?

A
  1. Inspect a copy of the tenancy agreement/side letters to agreement
  2. Request a copy of any notices served on the tenant during the tenancy
  3. Consider any security of tenure
  4. Request confirmation of who in actual occupation of the property
  5. Establish the deposit scheme details
  6. Request evidence that all the documents were provided to the tenant (EPC, How to rent)
  7. Request a copy of the right to rent documents.
112
Q

What additional steps will the buyer’s conveyancer need to carry out in connection with the landlord if buying a property with an existing tenant in place?

A
  1. Find out who is responsible for insuring the building
  2. Find out whether the landlord seller has complied with their obligations
  3. If there are breaches, request these are resolved before sale
  4. Ensure H&S is complied with, e.g. smoke alarms
  5. Request copies of gas safety certificates.
113
Q

When can the buyer of a property with an existing tenant in place not be able to serve a s21 notice?

A
  • If it is less than 4 months since the tenancy started
  • problems with deposit
  • problems with 6A form
  • problems with prohibited fees
  • problems with supplying appropriate documents (EPC etc)
114
Q

What issues will arise at/after completion for the buyer?

A

Apportionment of rent
Original tenancy agreement given to buyer
A rent authority letter giving permission for tenant to pay rent elsewhere

115
Q

What must the buyer do the day after assignment of the lease, according to s3 LTA 1985?

A

Give written notice of assignment and their name and address to the tenant.

116
Q

Why is it important that the buyer gives the tenant their address in the UK ASAP?

A

So the tenant can serve any notices required. Otherwise the rent will be withheld until then.

117
Q
A

Wrapped: Property and Conveyancing (16 decks)

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