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Tessa’s Ten Top Tips on Occupation Types (England)

  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 periodic tenancy (APT).
  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 usually 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 are not provided or 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.  After the coming into force of the Renters Rights Act, all ASTs have been converted to APTs.  
  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 periodic tenancies. 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. Any attempt by a landlord to create a fixed term for an APT will be of no effect, and landlords who try will be vulnerable to a fine of up to £7,000.
  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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