Tenancies for children and young people

The legal position of tenancies for people under 18, including succession to a tenancy. 

This content applies to England

Tenancies and contracts for minors

Many contracts made between an adult and a minor (a person under the age of 18) are binding on the adult but not on the minor. 

However, this does not apply to contracts for 'necessaries' if the minor has sufficient capacity to understand the responsibilities arising from it. Whether a minor has sufficient capacity will be a question of fact in each case.[1]

Accommodation is generally assumed to be a 'necessary', therefore a contract relating to the provision of accommodation to a young person under the age of 18, but with sufficient capacity, is binding on them (valid and fully enforceable against them). For example, they are liable to pay rent and, if rent arrears accrue, the landlord can recover the unpaid rent through the courts.

However, under land law, a minor cannot hold a 'legal' interest in land and can only hold an 'equitable' interest.[2] This creates difficulties for landlords when granting and ending occupation rights to minors as, depending on the type of letting, there might not be a direct contractual relationship between the landlord and the minor.

How occupation rights can be granted to minors

A landlord can grant occupation rights to minors in one of the following ways:

Grant of tenancy to a third party on trust for the minor

Although a minor cannot hold a tenancy they can 'benefit' from a tenancy. The tenancy can be granted to a third party, a 'trustee', and held on trust for the minor until they reach the age of 18.

The minor has a beneficial interest, which means they have the right to live in the property. The trustee holds the legal title to the tenancy.

The trustee could be an adult relative or friend or a social worker and is in effect a caretaker of the tenancy. The trustee is responsible for ensuring the rent is paid, but is not liable to pay the rent out of their own resources unless they give a personal guarantee to do so.

Landlord holds the tenancy on trust for the minor

The landlord can retain the tenancy on trust (as above) for the minor until they reach the age of 18.[3] This usually happens when the landlord enters into a tenancy agreement with the minor, without realising that the minor cannot hold a legal interest in property.

However, this causes problems in the event of the landlord wishing to seek possession, because the landlord cannot serve notice on themselves.[4]

Grant of a joint tenancy

If there is a person aged 18 or over who is willing to enter into a tenancy agreement with the minor, a joint tenancy can be created.

The adult tenant holds the legal estate as trustee for both joint tenants (as above). An agreement between all parties (ie including the landlord) could be drawn up to say that a sole tenancy will be granted to the minor when they reach 18 years old, at which time the joint tenancy will be surrendered.

Grant of a licence

There is no restriction on minors being granted a licence (ie personal permission to occupy premises). A full tenancy can then be granted to the minor when they turn 18.

Where the landlord is a local authority, and all the hallmarks of a secure tenancy exist, the landlord can grant a secure licence. A secure licence has the same security as a secure tenancy.

Universal credit and housing benefit for 16 and 17 year olds

Normally a claimant has to be at least 18 to claim universal credit. There are some people under 18 who can claim.

There are no age restrictions on claiming housing benefit.

Many 16 or 17 year olds claiming either universal credit or housing benefit will fall within the Single Room Rent restrictions for people under the age 35.

Court action against a minor to enforce a tenancy agreement

Court actions against minors must be brought through an adult willing to act as a 'litigation friend'. 

This is often a social worker or a close relative. If the young person has a trustee, this person will normally be the minor's litigation friend.

The court can appoint the District Judge as a litigation friend to protect the interests of the minor if there is nobody to act.[5]

Succession and assignment for 16 and 17 year olds

To succeed to a tenancy after the death of the tenant, a minor must fulfil the relevant statutory criteria for succession.[6]

The tenancy can be held on trust until the young person reaches 18 years.

When the tenancy permits assignment and an adult tenant attempts to assign a tenancy to a minor, the assignment does not transfer the legal title but automatically creates a trust. The adult tenant is the trustee, unless someone else is named as the trustee. 

Rights to assign a tenancy depend upon the type of tenancy.

Last updated: 23 March 2021

Footnotes

  • [1]

    Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7.

  • [2]

    s.1(6) Law of Property Act 1925; para 1(1)(b), Sch.1, Trusts of Land and Appointment of Trustees Act 1996.

  • [3]

    para 1, Sch.1 Trustees of Land and Appointment of Trustees Act 1996.

  • [4]

    Alexander-David v Hammersmith and Fulham LBC [2009] EWCA Civ 259.

  • [5]

    r. 21.2, CPR.

  • [6]

    Kingston upon Thames RBC v Prince (1999) 31 HLR 794, CA.