The Residential Tenancy Agreement
Residential Tenancies in England and Wales are based on contractual landlord and tenant law, but they have been considerably modified by statutory rules which generally take precedence - the Rent Act and Housing Acts and various other Act and regulations.
There are basically three levels of approach to land law in England & Wales which inevitably makes the whole process of landlord and tenant disputes quite complex:
- Statute - EU Directives and Laws
- Statute - Parliament Laws and Regulations
- Contract Law
- Common Law
The Assured Shorthold Tenancy (AST)
The Assured Shorthold Tenancy (Housing Acts 1988 as amended 1996) is now the default tenancy. This means that unless you specify otherwise by agreement, or even if you let without a written agreement, a residential tenancy in England and Wales will be an AST.
It's the older tenancies you need to be wary of - see below.
RENT ACT 1977 - pre 15 January 1989
This and the next section cover older types of agreements, which are now quite rare.
s.1: Protected Tenancy= letting of house etc. as separate dwelling.
s.2: Statutory Tenancy= what arises as a statutory continuation after Protected expires.
NB: not same tenancy (unlike HA 1988 periodic continuation).
s.18: Regulated Tenancy= collective name for Protected or Statutory
s.18A: Controlled Tenancy= various pre-1980 tenancies converted into Regulated.
s.19: Restricted Contract (previously called "Part VI Contract") = letting where rent includes payment for furniture or services.
HOUSING ACT 1980
s.52: Protected Shorthold = letting (one year to five years only), similar to original AST, i.e. preceded by warning Notice from the Landlord and with no security after fixed term expiry.
HOUSING ACT 1988
s.1: Assured Tenancy=letting within 1988 Act, with effect from 15 January 1989.
s.19A: Assured Shorthold Tenancy=ditto preceded by s.20 Notice. These pre-date 1 March 1997.
s.20: Assured Shorthold Tenancy-ditto, but no need for preceding Notice. These post-date 28 February 1997.
Other 1988 Act tenancies are loosely described as Standard Assured Tenancies (ie not ASTs).
Joint Tenancies (House Sharing Agreements)
Where there is more than one tenant in a property, the tenancy will usually say they have a Joint Tenancy and they are “jointly and severally” liable.
This legal expression means that, jointly the tenants are liable for the payment of all rents and all liabilities falling due during the tenancy, as well as any breach of the agreement.
Also, individually each tenant (or their guarantor) can be held liable for payment of the whole (i.e. all rent and all liabilities for the tenancy), as well as any breach of the agreement, until all payments have been made in full.
So, if one or more of the tenants disappears owing money, the landlord or his agent can claim the whole amount owing from all (or just one) of the remaining tenants.
Tenants without full Tenancy Rights
These are lodgers and those tenants where the landlord lives in the same building but does not necessary share facilities, purpose built flats excluded. Here the agreement does not come under the Housing Acts and therefore the “tenant” or lodger does not have Housing Act protection.
A Lodger occupies on license (not a tenancy) and shares facilities – cooking and washing – with the landlord or family. The lodger is subject to one rent period’s notice or 28 days whichever is the longer.
Commercial (Business) Tenancies
Commercial tenancies are very much a contract based process, consequently whatever terms are negotiated and agreed are very important in deciding the landlord and tenant obligations - they are binding on the parties under contract law.
However, at termination the commercial tenant has statutory protection under the Landlord & Tenant Act 1954, which also governs other aspects of the relationship such as notices and compensation payments etc. Landlords can regain possession but on very limited grounds.
If both parties are in agreement before the lease is signed the statutory protection can be waived by agreeing to exclude the Act - known as "letting outside the Act".
Obtaining Letting Agreements
Make sure you use an up-to-date letting agreement because tenancy regulations change frequently. It is also important to make sure you use a quality supplier – avoid free downloads from the Internet which are unlikely to be suitable.