Occupiers with basic protection

Most tenants are protected by either the:

• Rent Act 1977 (regulated tenants)

• Housing Act 1985 (secure tenants)

• Housing Act 1988 (assured and assured shorthold tenants)

If a tenant does not come within the protection of one of these Acts or another statute giving security of tenure, they are either an occupier with basic protection or an excluded occupier.

Most licensees are also either occupiers with basic protection or excluded occupiers.

Under the Protection from Eviction Act 1977 occupiers with basic protection cannot be evicted without a court order. A landlord must follow the correct procedure to evict an occupier with basic protection.

The occupier must follow the correct process to end their basic protection tenancy or licence.

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]

A tenancy let by an individual landlord (not a company) only has basic protection where the landlord is resident as it is 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.

If living accommodation is shared, the tenant is an excluded occupier or has 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]

• '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] It is possible that a landlord could occupy two premises as a residence.

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 is not counted as resident where the accommodation is of two different flats in a self contained block.

Where landlord and tenant both have self-contained flats in a converted house, the landlord is resident, whereas if the flats are in a purpose-built block they are not. Where a landlord and tenant both occupy a flat in a purpose built block, the landlord is resident (but if there is shared accommodation, there is 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.

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.

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 is generally an excluded occupier and only has basic protection where they provides service or 'money's worth' to the landlord in place of rent.

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]

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.

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.

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]

Tenants of the Crown or a government department only have basic protection.[17]

Two exceptions to this are:

• where the interest is managed by the Crown Estate Commissioners

• lettings after 1 April 1991 by health authorities and NHS trusts

Both of these can be assured tenancies.[18]

Tenants of the Crown Estates Commissioners are protected under the Rent Act 1977 or Housing Act 1988.

For example, a council tenant who has lost secure tenancy status because they no longer satisfy the conditions for maintaining a secure tenancy, for example they no longer occupy the property as their only or principal home, is a tenant with basic protection.

A tenant of a housing co-operative is usually 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.

Occupiers who are placed in interim accommodation while the authority is carrying out inquires into their homelessness application are excluded occupiers.[19]

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 is 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.[20]Occupiers of such non-secure tenancies towards whom the authority has accepted the main housing duty have basic protection.

Staying in the same accommodation after the main housing duty is accepted

The applicant is an occupier with basic protection and the requirements under the Protection from Eviction Act 1977 will need to be satisfied[21] if the local authority:

• grants the applicant a licence to occupy interim accommodation pending inquiries

• subsequently accepts the main housing duty

• advises the applicant to remain in what used to be interim accommodation for an indefinite period of time pending identification of suitable long-term accommodation

For more information see Interim duty to accommodate.

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.