Payments after tenancy ends

The information on this page will apply where the former tenant or another occupier remains in the property as a trespasser, for example, where a:

• basic protected tenancy ends. A periodic tenancy will end when a valid notice to quit takes effect, a fixed term tenancy will end when the fixed term expires.

• tenant of a borrower/mortgagor remains in occupation after a mortgage lender has obtained a possession order and the tenancy is not binding on the lender.

• joint tenant remains in occupation after the expiry of a valid notice to quit served by another joint tenant[1]

A tenancy that is protected by the Rent Act 1977, Housing Act 1985, Housing Act 1988 and Housing Act 1996 continues with the same security of tenure after the date a possession order takes effect, regardless of whether the possession order is outright, suspended or postponed.[2]

The tenancy will end only when the tenant is evicted or the tenant leaves of their own accord after the possession order is made. The tenant does not become a trespasser and rent is payable until the tenancy ends.[3]

When a former tenant remains in occupation after a tenancy has been terminated, a landlord can claim money from them for continued use of the premises. These payments are known as mesne profits. The amount of mesne profits payable is usually equivalent to the rent that the former tenant was paying.[4]

Mesne profits do not count as 'rent' and as such a landlord is not creating a new tenancy by accepting such payments.

There may also be situations where a person who is not a former tenant is occupying a property with the express or implied agreement of the owner, but where no rent has been agreed. The owner of the property can recover damages for use and occupation. This could apply where the occupier was a former licensee or trespasser.

In practice, the terms mesne profits and damages for use and occupation are often used interchangeably.

In the event that a tenant remains in occupation as a trespasser after the valid notice to quit they served takes effect, the landlord can claim ‘double rent’ (in the form of mesne profits or damages for use and occupation) for the period the former tenant remains in occupation.[5]

This will apply where a joint tenant has unilaterally ended the joint tenancy by serving a valid notice to quit and the other tenant stays in the property.

The landlord can only claim double rent if they do not give the former tenant permission to remain and treats the former tenant as a trespasser.[6]

Universal credit regulations are silent on whether mesne profits or use and occupation charges count as rent. This is different to the housing benefit regulations, where they are included as a type of eligible payment.[7]

Universal credit claimants who have been asked to pay mesne profits or use and occupation charges might be able to argue that a licence has been created. Licence payments come under the definition of a rent payment and qualify for the housing costs element.[8]