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Tenancies that cannot be secure

This content applies to England

Tenancies that cannot be secure even when they fulfil the conditions of a secure tenancy .

A tenancy or licence that fulfils the above criteria cannot be secure if it falls within one of the exceptions given in Schedule 1 of the Housing Act 1985 and listed below. This applies equally to Flexible tenancies, a form of secure tenancy.

Some tenants of local authorities have 'non-secure' tenancies. Non-secure tenants only have basic protection under the Protection from Eviction Act 1977.

Long leases

A tenancy granted for a period exceeding 21 years.[1] Information about long leaseholders can be found in Leasehold property.

Where a long leaseholder remains after the end of the lease without any fresh tenancy agreement there is a 'tenancy at will'. This does not amount to a secure tenancy.[2]

Introductory tenancies

In the first year of a tenancy, tenants of some local authorities are granted an introductory tenancy rather than a secure tenancy.[3] This type of tenancy came into effect on 12 February 1997.[4]

Premises related to employment

A tenancy will not be secure if it is granted to an employee who is required by his contract of employment to live in that accommodation for the better performance of her/his duties.[5] There are two aspects to this exemption. Firstly, the employment contract requires the employee to occupy a particular property. Secondly, this has to be for the better performance of his duties, which is a matter of fact.[6] The second aspect can be express or implied,[7] written or oral. If this exemption is satisfied then the employee will be a service occupier (see the section on Tied accommodation for details).

In addition, a tenancy cannot be secure if the property has been let on the above exemption within the three years prior to the grant of the tenancy. The landlord must also have notified the tenant that this exemption applies prior to the grant of the tenancy.

Tenancies of land acquired for development

A tenancy of a dwelling on land initially acquired for development that is currently being used as temporary accommodation by the landlord.[8]

Accommodation provided under homelessness legislation

A tenancy granted to a homeless household as part of any function under Part 7 of the Housing Act 1996 will not be secure, unless the local authority has notified the tenant that it is to be regarded as a secure tenancy.[9] This could include accommodation provided by a local authority:

It will also include cases where a local authority has exercised a power to accommodate pending a review.

Temporary accommodation for people taking up employment

A tenancy granted to a person who is taking up employment in a district, who is not normally resident in that district, and who requires temporary accommodation to enable her/him to secure permanent accommodation will not be secure.[10] This exemption applies if the landlord has given prior notification to the prospective occupier. If the landlord is a local authority, the tenancy will only become secure if the landlord informs the tenant that it is to be secure. For other landlords (capable of granting a secure tenancy), such a tenancy will become secure after 12 months.

Private sector leasing

A tenancy of a dwelling-house which has been leased from a private landlord to a local authority for use as temporary accommodation will not be secure. The private landlord must not be a body capable of granting secure tenancies and must be able to obtain vacant possession at the end of a specified period or when required. The landlord authority must not have any other interest in the property other than that under the current lease.[11]

Temporary accommodation during works

Tenancies granted on a temporary basis whilst works are carried out to the occupier's previous property will not be secure unless s/he was a secure tenant at her/his previous accommodation.[12]

Agricultural holdings

A tenancy will not be secure where the property is part of an agricultural holding and the tenant is responsible for the farming of the holding. This exemption is designed to exclude tenant farmers from security.[13]

Licensed premises

A tenancy of property that is part of premises licensed to sell alcohol for consumption on the premises will not be secure.[14]

Lettings to students

A tenancy will not be secure if it is granted to a student to enable her/him to attend a designated course provided that the landlord gave notice of this before the start of the tenancy, specifying that this exception applies and specifying the proposed educational establishment. Where the landlord is a local authority, this exemption ceases at any time if the landlord notifies the tenant that s/he is to be a secure tenant. In all other cases, the tenant remains non-secure until six months after s/he ceases to attend the educational establishment or if the tenant fails to take up the course within six months of the tenancy being granted.[15]

Business tenancies

A tenancy to which Part 2 of the Landlord and Tenant Act 1954 applies cannot be secure.[16] This covers any tenancy where the property is occupied for the purposes of a business (apart from a 'home business tenancy'). The business use must be a significant, rather than incidental, reason for occupation.

'Home business tenancies'

For secure tenancies created on or after 1 October 2015, the landlord can permit a tenant to operate a 'home business' and retain their secure status.[17]

A 'home business' is one that can reasonably be carried on at home such as internet businesses, financial consultancy, advertising copywriting, or a translation service.[18] A landlord should not withhold consent to a 'home business' unreasonably, but may do so if the business would result in significant wear and tear to the property, or cause a nuisance to neighbours.

Almshouses

A licence to occupy an almshouse will not be secure if the licence was granted by a charity that is authorised under its trusts to maintain the dwelling as an almshouse and has no power to grant tenancies.[19]

Asylum seekers

Asylum seekers who have been housed under Part 6 of the Immigration and Asylum Act 1999 cannot have a secure tenancy unless the landlord informs the tenant that it is to be secure. It may be necessary to establish when they arrived in the country and where they claimed asylum. See Asylum seekers for more information.

If an asylum seeker lives in accommodation provided by UKVI, s/he will be an excluded occupier, and cannot be a secure tenant.[20]

[1] para 1, Sch.1 Housing Act 1985.

[2] Banjo v Brent LBC [2005] EWCA Civ 292.

[3] para 1A, Sch.1 Housing Act 1985.

[4] s.124(2) Housing Act 1985.

[5] para 2, Sch.1 Housing Act 1985.

[6] Wragg v Surrey CC [2008] EWCA Civ 19.

[7] Godsmark v Greenwich LBC [2004] EWHC 1286, Ch D.

[8] para 3, Sch.1 Housing Act 1985.

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

[10] para 5, Sch.1 Housing Act 1985.

[11] para 6, Sch.1 Housing Act 1985; Tower Hamlets LBC v Abdi [1992] 9 WLUK 59; Cfr. Hickey v Haringey LBC [2006] EWCA Civ 373; Mohamed v Barnet LBC [2019] EWHC 1012 (QB).

[12] para 7, Sch.1 Housing Act 1985.

[13] para 8, Sch.1 Housing Act 1985.

[14] para 9, Sch.1 Housing Act 1985.

[15] para 10, Sch.1 Housing Act 1985.

[16] para 11, Sch.1 Housing Act 1985.

[17] ss.35 and 36 Small Business, Enterprise and Employment Act 2015; Small Business, Enterprise and Employment Act 2015 (Commencement No.2 and Transitional Provisions) Regulations 2015 SI 2015/1689; Small Business, Enterprise and Employment Act (Commencement No.1) (Wales) Regulations 2015 SI 2015/1710.

[18] s.43ZA Landlord and Tenant Act 1954 as amended by s.35 Small Business, Enterprise and Employment Act 2015; see also section C3(2) of the Model Agreement for an Assured Shorthold Tenancy, DCLG, October 2015.

[19] para 12, Sch.1 Housing Act 1985.

[20] para 4a, Sch.1 Housing Act 1985 as inserted by para 81, Sch.14 Immigration and Asylum Act 1999 from 11 November 1999. See also s.3A(7A) Protection from Eviction Act 1977.

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