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What is a secure tenancy?

This content applies to England

The definition of a secure tenancy and a secure licence and how to identify each .

Secure tenancy

The definition of a secure tenancy and the rights of secure tenants are contained in Part 4 of the Housing Act 1985. It applies to all tenancies whether or not they were created before the Act came into effect.

A tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the 'landlord' and 'tenant' conditions are satisfied and the tenancy is not specified as an exception (see Tenancies that cannot be secure).[1]

The information on this page applies equally to flexible tenancies, a form of fixed-term secure tenancy.

Tenant condition

The tenant condition is satisfied where:[2]

  • the tenant occupies the dwelling as her/his only or principal home, or
  • at least one of joint tenants occupies the dwelling as her/his only or principal home.

Landlord condition

The landlord condition is met where the landlord is a prescribed public body.[3] The list of prescribed bodies includes local authorities (including district councils, London borough councils, county councils) and housing action trusts.

Prior to 15 January 1989 most housing associations and housing co-operatives were also included in the landlord condition. As such if a housing association granted a tenancy before 15 January 1989 and if all the other requirements of a secure tenancy are met, the tenancy remains secure. Housing association tenants whose tenancies were granted on or after 15 January 1989 will be assured or assured shorthold tenants, unless the tenant (whether alone or as a joint tenant) was a secure tenant of the same landlord immediately before the new tenancy was granted (of the same or different premises), in which case s/he will be a secure tenant.[4]

It is important to remember that the landlord is not necessarily the same as the freeholder. In one case, the landlord condition was not satisfied where the freehold was owned by the local authority, the local authority leased accommodation to a housing association and the housing association's lease was ended by the council. In these circumstances, the tenant of the housing association had no legal relationship with the local authority and was therefore held not to be a secure tenant.[5]

Secure licence

The provisions in Part 4 Housing Act 1985 apply to licences in the same way that they apply to tenancies.[6]

A licence may be secure regardless of whether any charge is made for the accommodation.[7] A licence granted temporarily to someone who entered the property as a squatter cannot be secure.[8]

For information on the differences between a tenancy and a licence see What is a tenancy?. For information on licences from public sector landlords, see Public sector licences.

In practice there are very few secure licences. Note that:

  • a licensee will have a secure licence only if s/he has exclusive possession of a dwelling-house or part of a house that is let as a separate dwelling (see below for the meaning of 'let as a separate dwelling'). This means that a person who can be compelled to move rooms or to share any part of their home with another person who is not a member of her/his household cannot be a secure licensee.[9]
  • a licence granted to a homeless person by a local authority is not secure.[10]

One example of a secure licence may be where accommodation is allocated to a minor (because only persons of 18 years or over can hold a tenancy).

Let as a separate dwelling

A secure tenancy or licence can only exist if the dwelling-house is let as a 'separate dwelling'.[11]

The occupier must have exclusive possession of the dwelling. Therefore licensees of hostels where the occupants can be moved from room to room cannot have secure status.[12]

A person who is sharing 'living accommodation' (eg a living room or a kitchen that is big enough to eat in) with other tenants or licensees does not occupy the premises as a separate dwelling, even if s/he has exclusive possession of one room.[13] Whether the same applies to the sharing of a bathroom, lavatory, or a small kitchen, is not clear.[14]

Individual

The tenant or each joint tenant must be a person and not an institution or a company.[15]

Only or principal home

The tenant must occupy the property as her/his 'only or principal home' for it to remain a secure tenancy or licence.[16] The issue requires a two-stage approach; firstly does s/he occupy the home, and if 'yes', secondly, is this her/his principal home? Each case will depend on its own facts.

If there are joint tenants, only one has to meet the condition to maintain the secure tenancy.

Sublet

A tenant does not have to occupy the whole of the premises because she/he can sublet a part of her/his home (with the landlord's written consent) or take in lodgers.[17]

If the tenant sublets the whole of the property the tenancy ceases to be secure, and once security has been lost by subletting it cannot be regained by the tenant evicting the subtenant and going back into occupation.[18] The unauthorised subletting of a secure tenancy can also be a criminal offence - see Social housing fraud for details.

Lengthy absence

It is not necessary for the tenant to be living in the property continuously. A temporary absence for a long holiday, to work or to visit relatives abroad, or because of illness or imprisonment may be consistent with continued occupation.

Where the tenant is absent for a long period this is could lead to a presumption that the tenancy is no longer secure, and:[19]

  • the onus will be on the tenant to show s/he has an intention to return. The focus will be on the tenant's enduring intention and will not be displaced by fleeting changes of mind[20] (this may be particularly problematic in cases where the tenant is mentally and/or terminally ill and/or has been admitted into long-term residential care)
  • it will not be sufficient that the tenant has a subjective intention to return, the facts of the case must show that a return to the property is a realistic possibility
  • there must be physical evidence of continuing occupation like furniture or other belongings, or the presence of a 'caretaker'.

Two homes

If a tenant is in occupation of two homes, security is not necessarily lost if the property that is the subject of the secure tenancy is the main home. In one case the tenant went to live with his girlfriend for a year, the gas and electricity supplies were cut off but the secure tenancy remained his 'principal home'.[21]

Position of separated partners in occupation

Where a tenant has left and a non-tenant spouse or civil partner (but not another type of cohabitee) remains in the property, s/he will have the right to remain in the property as if s/he were the tenant and the residence requirement will therefore be fulfilled.[22] A cohabitee with an occupation order would also have this right.[23] See Relationship breakdown for further information.

Regaining security

It is possible for the tenant to pass in and out of secure status. A tenant who has lost security by ceasing to occupy can regain it if s/he resumes occupation before the contractual tenancy has been ended by the expiry of a notice to quit. However, this will not be the case if the secure tenancy has been lost by the tenant subletting or parting with possession of the whole of the premises.[24]

[1] s.79 Housing Act 1985.

[2] s.81 Housing Act 1985.

[3] s.80 Housing Act 1985.

[4] s.35(2)(b) and 35(4)(d) Housing Act 1988.

[5] Kay and Others v (1) Lambeth LBC and (2) London and Quadrant Housing Trust [2004] EWCA Civ 926.

[6] s.79(3) Housing Act 1985.

[7] s.79(3) Housing Act 1985.

[8] s.79(4) Housing Act 1985.

[9] Westminster CC v Clarke (1992) 24 HLR 360.

[10] para 4, Sch.1 Housing Act 1985.

[11] s.79 Housing Act 1985.

[12] Westminster CC v Clarke (1992) 24 HLR 360.

[13] Central YMCA HA Ltd v Saunders (1991) 23 HLR 212; Curl v Angelo [1948] 2 All ER 189.

[14] Cole v Harris [1945] KB 474, CA; Neale v Del Soto [1945] KB 144, CA.

[15] s.81 Housing Act 1985.

[16] s.81 Housing Act 1985; Islington LBC v Boyle and Anor [2011] EWCA Civ 1450; Southwark LBC v Ibidun [2017] EWHC 2775 (QB).

[17] s.93(1) Housing Act 1985; Harris v Swick Securities [1969] 3 All ER 1131, CA.

[18] s.93(2) Housing Act 1985;  Zionmor v Islington LBC [1998] 2 CL 366, CA; Southwark LBC v Ibidun [2017] EWHC 2775 (QB).

[19] Islington LBC v Boyle and Anor [2011] EWCA Civ 1450; (1) Dove (2) Dove v Havering LBC [2017] EWCA Civ 156; Amoah v Barking and Dagenham LBC [2001] 82 P&CR DG6, Legal Action March 2001, CA.

[20] Hammersmith and Fulham LBC v Clarke (2001) 33 HLR 881, CA; Crawley BC v Sawyer (1987) 20 HLR 98, CA.

[21] Crawley BC v Sawyer (1987) 20 HLR 98, CA.

[22] s.30(1) Family Law Act 1996 and para 1, Sch.9 Civil Partnership Act 2004.

[23] s.36 Family Law Act 1996.

[24] Hussey v Camden LBC (1995) 27 HLR 5, CA; Islington LBC v Boyle and Anor [2011] EWCA Civ 1450.

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