Tessa’s Ten Top Tips on Occupation Types

  1. If a landlord rents a room in his own home and shares living accommodation with the occupier, the occupier has fewer legal rights. The occupier here is normally known as a lodger.
  2. Apart from resident landlord situations, in most cases where someone moves into a property and starts paying rent, they will automatically acquire an assured shorthold tenancy.
  3. Putting ‘residential license’ at the top of the agreement signed by a prospective occupier and including clauses saying that the occupier has a license and not a tenancy will not of itself mean that the occupier will have a license and not a tenancy
  4. If you give someone a ‘license agreement’ when they actually have a tenancy, this is known as a ‘sham license’ and is a criminal offence.
  5. You can create a residential license if you provide cleaning and similar services where the landlord or his staff enter the property or room regularly as of right. However if these services cease for a significant period of time, the occupation will normally convert to a tenancy.
  6. The rule that said that you had to give a fixed term of six months or more as a condition of creating an assured shorthold tenancy ended in 1997. Now you can create an AST for any fixed term length. However, the short fixed term can only be enforced by the tenant as landlords cannot use section 21 to evict tenants during the first six months as notices must give a notice period of at least two months and the notice cannot be served during the first four months of a tenancy.
  7. A tenancy is a form of legal interest in land. While the tenancy exists the tenant has the right to exclude everyone from the property (apart from special cases such as police with search warrants) – even the landlord.
  8. Do not assume that ALL tenancies are assured shortholds. Tenancies where the landlord is a resident landlord, the tenant is a limited company or the rent is over £100,000 are all examples of tenancies which will be ‘common law’ or ‘unregulated’ tenancies.
  9. Tenants who remain living in a property after the end of the fixed term where no new tenancy agreement has been signed, will not be ‘squatters’. They will normally acquire a ‘periodic tenancy’ and are entitled to remain living there until evicted under a Court Order.
  10. Tenants do not acquire special rights simply because they have been living in the property for a long time. Some long-term tenants do have extra rights but this is normally because the law which applied at the time the tenancy was created was different.

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