Property Law 9 - security of Tenure

Question 1

When do the security of tenure provisions apply?

Answer 1

…ANY TENANCY where the property comprised in the tenancy is or includes premises which are OCCUPIED BY THE TENANT and are so occupied for THE PURPOSES OF A BUSINESS carried on by him or for those and other purposes…

Question 2

What is a fixed term tenancy

Answer 2

· A fixed term tenancy creates exclusive possession and a proprietary interest.

· It binds successors in title to the landlord.

· The tenant can use the property as if they were the owner

Question 3

Can a fixed term tenancy benefit from security of tenure?

Answer 3

Yes

Question 4

What is a Periodic tenancy?

Answer 4

· A periodic tenancy creates exclusive possession and a proprietary interest.

· It binds successors in title to the landlord. However, it can be brought to an end by notice.

It’s essentially a tenancy that goes from one period to the next.

Question 5

Can a periodic tenancy benefit from security of tenure?

Answer 5

· It MAY benefit from security of tenure.

Question 6

What is a licence?

Answer 6

· A licence is a personal permission to be on the land and is not a proprietary interest.

· It does not bind successors in title to the owner granting the licence.

Question 7

Can a licence to occupy benefit from security of tenure?

Answer 7

No

Question 8

What is a tenancy at will?

Answer 8

· A tenancy at will is similar to a licence as it is a personal permission but unlike a licence, the tenant can have exclusive possession.

· However, the important feature is that either landlord or tenant can end the tenancy at any time.

Question 9

Can a tenancy at will benefit from security of tenure?

Answer 9

No

Question 10

If the tenant leaves the premises vacant, can they benefit from security of tenure?

Answer 10

No - including underlets

Question 11

Which tenancies are excluded from security of tenure?

Answer 11

• Agricultural tenancies (as they have their own statutory regime)
• Mining leases
• Service tenancies (a lease granted as part of a tenant’s employment, eg, a security guard’s flat)
• Fixed term tenancies of six months or less (but can become protected if the tenant has been in occupation for twelve months or more, whether through successive tenancies or if the tenancy is renewable beyond six months)

Question 12

What tenancies can be ‘contracted out’ of the Landlord and Tenant act?

Answer 12

Fixed term tenancies (note a periodic tenancy cannot be contracted out).

Question 13

What is the process for contracting out?

Answer 13

• The landlord must serve a warning notice on the tenant in a prescribed form.
• It must be served before the parties complete the lease.
• The tenant must provide a declaration in prescribed form to the landlord before completing the lease.
• If lease completion is at least 14 days from the date of the warning notice then this can be a simple signed declaration.
• If lease completion is less than 14 days away, then the tenant must provide a statutory declaration (declared before an independent solicitor).
• The lease must contain reference to both the notice and declaration (or statutory declaration) of contracting out.

Question 14

What happens if the process for contracting out is not followed?

Answer 14

the likelihood is that the lease will enjoy security of tenure