Possession of basic protection tenancies and licenses

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.[1]

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.

Where all occupiers have no right to rent

The requirement for a court order does not apply where 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.[2]

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.

In the absence of a forfeiture or break clause a landlord is 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.

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.[3] The occupier cannot be evicted without a court order, unless they are an excluded occupier.

Agricultural employees are subject to specific provisions.[4]

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) usually applies to a tenancy with basic protection.

If the landlord wants the occupier to leave, the steps they 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 their landlord wants to evict them.

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.[5]

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

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'.[6] 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.

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.

If an occupier remains until there is a court order, they 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.[7]

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.

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

• subjecting those people to any other detriment

Disability

The landlord unlawfully discriminates against a tenant if they treat the tenant unfavourably and that treatment arises as a consequence of the tenant's disability.[8]

Discrimination arises 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 their ability to manage her financial affairs, including the ability to apply for housing benefit.

Discrimination provides 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,[9] or

• they did not know (or could not be reasonably expected to know) that the tenant was disabled[10]

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.[11]

Guidance on the Equality Act 2010

The Government Equalities Office and the Equality and Human Rights Commission (EHRC) have issued guidance to 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.