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Ending a basic protection tenancy/licence

This content applies to England

Notice requirements and eviction of occupiers with basic protection.

Where there is a contract, during the term of that contract, occupiers with basic protection can rely on the terms of the contract, whether written or verbal. Non-contractual agreements and undertakings may also have legal effect, and it may be necessary to take specialist legal advice on these.

Implied term - right to rent

From 1 December 2016, it is an implied term that the landlord of premises held under a basic protected tenancy or licence may terminate the agreement if the premises are occupied by an adult who does not have a 'right to rent'.[1]

A landlord may be liable to civil or criminal sanctions if s/he does not take action to evict by following the proper legal procedure as set out below (nb in the absence of a forfeiture or break clause a landlord will be unable to evict during a fixed term agreement, but the occupier should be aware that the landlord has a duty to notify the Home Office of their presence).

Protections

Occupiers with basic protection are protected by the Protection from Eviction Act 1977. If the licence or tenancy is periodic, they are entitled to at least four weeks' notice to quit from the landlord. A court order is necessary before they have to leave.[2] The provisions of the Protection from Eviction Act 1977 cannot be excluded by the terms of the tenancy or licence. It may not be possible to terminate the tenancy or licence if a fixed term agreement has not expired (see 'fixed term occupiers', below).

Where all occupiers have no right to rent

The requirement for a court order does not apply where:[3]

  • all of the occupiers of premises held on a basic protected tenancy have no right to rent, and
  • the Home Office has served a notice to that effect on the landlord.

Where both of the above apply, the landlord may terminate a basic protected tenancy by serving 28 days' notice on a prescribed form. There is no requirement for the landlord to obtain a court order. See the page Right to rent for details.

Service occupiers

A service occupier has limited protection under the Protection From Eviction Act 1977. The agreement terminates with the employment contract and there is no need for the employer to serve a notice to quit.[4] The occupier cannot be evicted without a court order, unless they are an excluded occupier. Agricultural employees are subject to specific provisions (see the section Agricultural occupiers for details).[5]

Protection not related to security of tenure

Other legislation can apply to occupiers with basic protection to give them further rights (though not in relation to security of tenure). For example, section 11 of the Landlord and Tenant Act 1985 (rights to repair) will normally apply to a tenancy with basic protection. See the section on Housing conditions for information on rights to repair.

Occupier wants to leave

If an occupier with basic protection wants to leave, the notice s/he must give depends on whether s/he has a periodic agreement or a fixed-term agreement. The tenant could also surrender the tenancy but only if the landlord agrees.

Periodic occupiers

A valid notice to quit by the tenant will end the tenancy. The notice must expire on the first or last day of a period of the tenancy and be equal to the length of the period of the tenancy (although a yearly tenant need only give six months' notice), unless the tenancy agreement expressly allows otherwise. Under the Protection from Eviction Act 1977 the notice must also be in writing and of no less than 28 days.[6] For further information about the requirements for a notice to quit to be valid see Notices to quit: Tenants.

Fixed-term occupiers

If the occupier has a fixed term agreement, unless there is a 'break clause' in the agreement (for more information see the page Break clauses and notices) allowing the occupier to give notice to leave early, s/he has to remain until the end of the fixed term. If the occupier leaves before the end of the fixed term, s/he can be legally liable to pay the rent for the whole of the term.

Surrender

A surrender is a voluntary agreement between the landlord and occupier that the tenancy (or licence) has come to an end. A surrender will terminate the tenancy/licence, whether it is fixed-term or periodic.

A surrender can be express or implied. For a surrender to be implied there must be a clear indication, by action or words, on the part of the occupier of her/his intention to leave for good and, on the part of the landlord, of its willingness to accept the surrender.[7] The surrender of a joint tenancy will only be effective where all the joint tenants are party to it.[8]

For more information see the page Surrender.

Landlord wants to evict the occupier

If the landlord wants the occupier to leave, the steps s/he must take depend on whether the occupier has a fixed term or periodic agreement.

Periodic occupiers

An occupier with basic protection who has a periodic agreement is entitled to written notice to quit if her/his landlord wants to evict her/him. For information about the requirements for a notice to quit to be valid see Notices to quit: Landlords.

Fixed term occupiers

Fixed term agreements do not need a notice to quit to end them, as the licence or tenancy ends on the expiry of the contractually agreed term. After expiry, if the occupier does not leave, the landlord must apply to court for an order for possession.

However, some fixed term agreements have a 'break clause' that allows the landlord or tenant (or both) to end the contract early. In some contracts, the clause is worded in a way that means the landlord can only terminate the agreement if the tenant has broken a term of the agreement. If there is a break clause, the landlord can evict after giving the notice set out in that clause. However, a break clause allowing the landlord to terminate the agreement before the end of the fixed term should also include the option for the tenant to end the agreement early as well, and the notice that the landlord is required to give should not be less than that which the tenant must give. A break clause that gives more rights to the landlord than to the tenant could be an unfair term under consumer protection law. If a term is unfair, then it is not binding on the tenant.[9]

See the page on Break clauses and notices for more information about fairness of break clauses in tenancy agreements.

Alternatively, a landlord may activate a forfeiture clause contained in the agreement in order to end a fixed term early.

Eviction

The Protection from Eviction Act 1977 makes it unlawful for landlords of occupiers with basic protection to recover possession 'otherwise than by proceedings in the court'.[10] The provisions of section 3 of the Protection from Eviction Act 1977 apply to all occupiers with basic protection. This means that if a tenancy or licence with basic protection has ended (either by notice or expiry of the fixed term) and the occupier continues to live there after termination, the landlord can only evict by obtaining a court order. However, the landlord does not have to give the court a reason to evict, so someone with basic protection has very limited security of tenure.

The time it takes to go to court – from serving the summons to the court hearing and the execution of the bailiff's warrant can gain an occupier valuable time to find alternative accommodation. It should be remembered, however, that if an occupier remains until there is a court order, s/he will still have to pay rent and may have to bear the cost of the proceedings. If the court decides that a possession order should be granted the day for giving up possession cannot be later than 14 days after the possession order is issued, except where repossession would cause exceptional hardship in which case the date can be postponed for a maximum of six weeks.[11]

No right to rent exception

A landlord does not require a court order to evict in the situation described above where all of the occupiers of premises held on a basic protected tenancy have no right to rent. In this case the occupier(s) is/are excluded from the protection of section 3 of the Protection from Eviction Act 1977.

For detail of occupiers excluded from the protection of section 3 see the page Protection from Eviction Act 1977.

Public authority landlord

Where the landlord is a public authority it may be possible for the tenant to raise a public law defence to possession proceedings based upon:

  • conventional judicial review grounds or
  • a breach of the tenant's human rights.

For further information see the page on Public law and human rights defences in possession proceedings

Discrimination

Part 4 (Premises) of the Equality Act 2010 prohibits discrimination in relation to premises and imposes a duty on people with the right to dispose of, and managers of, premises not to unlawfully discriminate against people who have a protected characteristic (ie disability, gender reassignment, pregnancy or maternity, race (this includes colour, nationality and ethnic or national origins), sex, sexual orientation, religion or belief) by:

  • evicting them
  • taking steps for the purpose of securing their eviction, or
  • subjecting those people to any other detriment.

See the page on Discrimination in relation to premises for more information.

Disability

With particular regard to disability, the landlord will unlawfully discriminate against a tenant if it treats the tenant unfavourably and that treatment arises as a consequence of the tenant's disability.[12] Discrimination will arise if the reason that the landlord is taking possession is sufficiently linked to the tenant's disability, for example where there is evidence that a tenant's depressive illness has a substantial adverse effect on her/his ability to manage her financial affairs, including the ability to apply for housing benefit.

Discrimination will provide a disabled tenant with a defence to possession proceedings unless the landlord can show that:

  • the tenant's eviction is a proportionate means of achieving a legitimate aim,[13] or
  • it did not know (or could not be reasonably expected to know) that the tenant was disabled.[14]

There is also a duty to make reasonable adjustment which extends to a provision, criterion or practice of the landlord, in all cases where the adjustment is required to avoid placing the disabled person at a substantial disadvantage.[15]

The page on Disability discrimination has further information relevant to disabled tenants.

Guidance on the Equality Act 2010

The Equality and Human Rights Commission (EHRC) has issued the statutory Code of Practice on Services, Public Functions and Associations . The Government Equalities Office has published a series of summary guides which explain the main changes to the law and the actions that organisations should undertake in order to prevent and address discrimination when providing goods, facilities and services to the public.

[1] s.33E Immigration Act 2014 inserted by s.40 Immigration Act 2016.

[2] ss.3 and 5 Protection from Eviction Act 1977.

[3] s33D(1) Immigration Act 2014 inserted by s.40 Immigration Act 2016 (in force with effect from 1 December 2016).

[4] Norris v Checksfield [1991] 1 WLR 1241 CA.

[5] s.4 Protection from Eviction Act 1977.

[6] s.5 Protection From Eviction Act 1977.

[7] Artworld Financial Corporation v Safaryan and others [2009] EWCA Civ 303.

[8] Leek and Moorlands Building Society v Clark [1952] 2 All ER 492, CA; Camden LBC v Lahouasnia [1998] C.L.Y. 3033.

[9] For tenancies which started before 1 October 2015 see Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083 and Guidance on Unfair Terms in Tenancy Agreements, Office of Fair Trading, September 2005; for tenancies which started on or after 1 October 2015, see Part 2 of the Consumer Rights Act 2015; Unfair terms in consumer contracts guidance (CMA37), Competition and Markets Authority, July 2015; and Consumer protection law guidance for lettings professionals (CMA31) Competition and Markets Authority, June 2014.

[10] s.3 Protection From Eviction Act 1977.

[11] s.89 Housing Act 1980.

[12] s.15 Equality Act 2010.

[13] s.15(1)(a) Equality Act 2010.

[14] s.15(2) Equality Act 2010.

[15] s.20 Equality Act 2010.

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