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Who has basic protection?

This content applies to England

Occupiers who have basic protection under the Protection from Eviction Act 1977.

Occupiers with basic protection have a minimum amount of protection under the Protection from Eviction Act 1977. Some are tenants, and some are licensees.

The page outlines most categories of occupier who have basic protection but it is not fully comprehensive.

Student lettings by specified educational institution

The educational institutions are specified by the Secretary of State and include universities, polytechnics and some other higher education establishments. Students living in halls of residence of such institutions have basic protection.[1]

Lettings where there is a resident landlord on the premises

A tenancy let by an individual landlord (ie, not a company) will only have basic protection where the landlord is resident as it will be excluded from protection under Rent Act 1977 and Housing Act 1988.[2]

This refers to cases where landlord and tenant live in the same building but may have different living quarters: note that where living accommodation is shared, the tenant will be an excluded occupier or have a restricted contract. Living accommodation in this context means any room such as a kitchen, living room or bathroom but excludes storage areas, stairways and hallways.[3]

Resident landlords

To qualify as a 'resident landlord' the landlord must:

  • 'occupy the premises as a residence' – for tenancies that would otherwise have the protection of the Rent Act 1977.[4] It is possible that a landlord could occupy two premises as a residence
  • 'occupy the premises as his or her "only or principal home"' – for tenancies that would otherwise be assured or assured shorthold tenancies under the Housing Act 1988.[5]

In either case, the landlord must be resident throughout the tenant's occupation. If the landlord moves out, then a regulated tenancy or an assured shorthold tenancy may ensue and this will be retained even if the landlord moves back in.[6]

If there are joint landlords, occupation by one of the landlords is sufficient to qualify as a resident landlord.[7]

Purpose built blocks of flats

A landlord will not be counted as resident where the accommodation is of two different flats in a self contained block. So, where landlord and tenant both have self-contained flats in a converted house, the landlord will be resident, whereas if the flats are in a purpose-built block s/he will not. Where a landlord and tenant both occupy a flat in a purpose built block, the landlord will be resident (but if there is shared accommodation, there will be an excluded tenancy).

In a case where a landlord converted a house into self-contained flats, and then added a separate two-storey extension which he moved into, he lost his resident landlord status because the extension was held to be an entirely new building.[8] It has also been held to be possible that an existing house could be rebuilt as a purpose-built block of flats if, for example, it was completely gutted and reconstructed, as in effect the extent of the work would be such as to create a new building. Whether or not accommodation forms part of the same, or a separate building, following works is a question of fact for the court to decide.[9]

For further information see Tenancies excluded from protection (under the Rent Act) and Tenancies that cannot be assured.  Under the Rent Act 1977, tenants with resident landlords had 'restricted contracts', which gave them limited rights under that Act, although most of these will have become tenancies with basic protection, see Restricted contracts.

Tenancies at a high rent or high rateable value

For tenancies entered into on or after 1 April 1990, this means a tenancy where the annual rent is greater than £100,000.[10] For tenancies entered into between 15 January 1989 and 31 March 1990 , the rules are more complicated and depend on whether the rateable value exceeds £750 (or £1,500 in Greater London).[11]

For tenancies entered into before January 1989 see Tenancies excluded from protection.

Tenancies at a low rent or no rent

For tenancies created on or after 1 April 1990, this means a tenancy where the annual rent is less than £250 (£1,000 in Greater London).[12] For tenancies entered into before 1 April 1990, the rules are worked out in relation to the rateable value. The low rent threshold is where the rent payable is less than two thirds of the rateable value on the appropriate day.[13]

A tenant paying no rent will generally be an excluded occupier and will only have basic protection where s/he provides services or 'money's worth' to the landlord in place of rent.

Rental purchasers

A rental purchaser is a licensee who makes payments towards the purchase of a freehold or leasehold property but does not become the legal owner until payments are complete. [14] See rental purchase for more information.

Lettings where the tenant is a company, not an individual

Case law has established that the Rent Act 1977 applies to lettings only to individuals, and this is made express in the Housing Acts 1985 and 1988. A company tenant may have protection for its business premises under the Landlord and Tenant Act 1954.

Service occupiers

A service occupancy exists where:

  • it is an express term of the employment contract that the employee lives at the property for the better performance of the employee's duties, or
  • the occupation of the property is essential for the performance of the employee's duties.

For more information on service occupiers, see Tied accommodation.

Contractual licensees

The distinction between tenants and licensees is well explored in case law.[15] An occupier of an almshouse who is the beneficiary of a charitable trust is a licensee.[16]

For more information on contractual licensees, see What is a licence?

Tenants of a government department or the Crown

Tenants of the Crown or a government department only have basic protection.[17] Note that tenants of the Crown Estates Commissioners are protected under the Rent Act 1977 or Housing Act 1988.

Tenancies that have fallen out of protection from one of the Housing Acts or the Rent Act

For example, a council tenant who has lost secure tenancy status because s/he no longer satisfies the conditions for maintaining a secure tenancy, eg no longer occupies the property as her/his only or principal home, is a tenant with basic protection (see Secure tenancies for details).

Tenants of housing co-operatives

A tenant of a housing co-operative will usually be an occupier with basic protection be exempt from protection given by the Housing Act 1988, Housing Act 1985 and Rent Act 1977. However, there are exceptions to this rule.

For more information see Rights of housing co-operative occupiers.

Accommodation provided to homeless applicants under Part 7

Occupiers who are placed in interim accommodation while the authority is carrying out inquires into their homelessness application will be excluded occupiers.[18] However, a tenancy granted to a homeless applicant in pursuance of any function under Part 7 of the Housing Act 1996 and where the landlord is a local authority is normally a non-secure tenancy. It will be only a secure tenancy if the local housing authority has notified the applicant that it is to be so regarded at the date of the grant.[19]

Occupiers of such non-secure tenancies towards whom the authority has accepted the main housing duty will have basic protection.

Licence to occupy interim accommodation

If, after having provided an applicant with temporary accommodation, the authority accepts that it owes the main housing duty and tells the applicant to continue to occupy the temporary accommodation for an indefinite period of time pending identification of suitable long-term accommodation, the applicant will be an occupier with basic protection and the requirements under the Protection from Eviction Act 1977 will need to be satisfied.[20] For more information see Interim duties to accommodate: Applications, inquiries and decisions.

Mixed cases

Advisers should note that some occupiers who fall into the above list may be excluded occupiers. For example, a contractual licensee may not pay any rent and therefore could be an excluded licensee.

Advisers should cross-check with the list of excluded occupiers set out in the section about Who is an excluded occupier? before advising on security of tenure.

[1] para 8, Sch.1 Housing Act 1988; Assured and Protected Tenancies (Lettings to Students) Regulations 1998 SI 1998/1967, as amended from time to time.

[2] para 10, Sch.1 Housing Act 1988; s.12 Rent Act 1977.

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

[4] s.12 Rent Act 1977.

[5] para 10, Sch.1 Housing Act 1988.

[6] para 10, Sch.1 Housing Act 1988; s.12 Rent Act 1977.

[7] Cooper v Tait (1984) 15 HLR 98, CA.

[8] Bardrick v Haycock (1981) 2 HLR 118.

[9] Barnes v Gorsuch (1976) 2 HLR 134.

[10] para 2, Sch.1 Housing Act 1988.

[11] para 2A Sch.1 Housing Act 1988.

[12] para 3, Sch.1 Housing Act 1988.

[13] The pre-April 1990 rule is that a tenancy cannot be protected under Rent Act 1977 or Housing Act 1988 if the rent payable is less than two thirds of the rateable value on the 'appropriate day'. See ss.5 and 25(3) Rent Act 1977, and para 3B, Sch.1 Housing Act 1988.

[14] para 61, Sch.25 Housing Act 1980.

[15] Street v Mountford [1985] AC 809 HL, Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 HL.

[16] Gray v Taylor [1998] 1 WLR 1093 CA; Watts v Stewart and Ors as Trustees of the Ashtead United Charity [2016] EWCA Civ 1247.

[17] para 11, Sch.1 Housing Act 1988.

[18] R (on the application of ZH and CN) v Newham LBC and Lewisham LBC and Secretary of State for Communities and Local Government (Interested Party) [2014] UKSC 62; Mohamed v Manek and Kensington and Chelsea RLBC (1995) 27 HLR 439.

[19] para 4, Sch.1 Housing Act 1985; Wandsworth LBC v Tompkins [2015] EWCA Civ 846.

[20] Dacorum Borough Council v Bucknall [2017] EWHC 2094 (QB).

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