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Where tenancy rights come from

A tenant's housing rights are contained in legislation, contract law, and common law.

This content applies to England

What creates a tenancy

A person is a tenant if they occupy a property where certain conditions are met.

The occupier must have an agreement that includes:[1]

  • the grant of exclusive possession of the premises

  • a defined period of time

  • an obligation to pay rent

A tenancy agreement is a contract. That means it must also have:

  • an intention to create legal relations of landlord and tenant

  • a landlord and a tenant[2]

An agreement that does not have all these elements might be a licence. A licence is permission to occupy premises. It gives the occupier fewer rights than a tenant.

An agreement that has all the elements of a tenancy but is given another label by the landlord could be a sham agreement.

Exclusive possession

Exclusive possession is the tenant's right to stop other people, including the landlord, from entering the rented property without permission. The rented property does not have to be an entire flat or house. It can be a tenancy of a single room.

A House of Lords case called Street v Mountford sets out the rules for when a tenancy exists. The landlord had allowed the tenant to occupy some rooms in a house with a condition that the landlord had unlimited access to the rooms at any time. The House of Lords decided that the facts of the arrangement did not require this degree of access and that the tenant had exclusive possession.[3]

A tenant still has exclusive possession if their landlord has reserved the right to enter in given circumstances, for example, to carry out repairs. The fact that the landlord has reserved the right is a positive indication of a tenancy.[4]

Term of the tenancy

The term of a tenancy can either be:

  • fixed term

  • periodic

A fixed-term tenancy sets out the length of the tenancy at the outset. It is usually between six months and three years.

A contractual periodic tenancy is a rolling tenancy agreed upon by the landlord and tenant at the outset. For example, a weekly, monthly, or quarterly tenancy. It can start:

  • at the end of a fixed term by agreement between the landlord and tenant

  • as a periodic tenancy with no fixed term

A statutory periodic tenancy starts automatically on the expiry of a fixed-term assured or assured shorthold tenancy if the initial tenancy agreement does not specify what happens when it ends.

Long leases

A tenancy for more than 21 years is a long lease. It is a form of home ownership. Long leaseholders have different rights than tenants.

Read more about leasehold and leaseholder rights on Shelter Legal.

Intention to enter into legal relations

A tenancy is a type of contract. The landlord and tenant must have the intention to enter into a legally binding agreement.

Arrangements with no intention to enter into a legal relationship are likely to be licences and not tenancies. This could include accommodation provided by family members or as an act of generosity, charity, or friendship.

For more information see What is a licence?

When an agreement is not a tenancy

There are exceptional cases where a tenancy will not normally be created even where the key elements are present. This includes where someone lives in accommodation provided by their employer as a service occupier.

Sources of tenancy rights

A tenancy is a legal right to occupy a property for a set period of time. It is a legal interest in land.

A tenant has rights that are set out in legislation. The landlord cannot avoid granting the tenant rights by writing something different in the tenancy agreement, even if the tenant agrees to it at the time. 

The right of tenants to remain in their property without the landlord removing them is sometimes called security of tenure.

Protection from eviction

A landlord cannot normally evict a tenant without issuing a possession claim for a court order.

Different tenancy types have different levels of protection from eviction. Some tenants who have lived in a property for a long time, or have a social tenancy, are difficult for a landlord to evict. The landlord must show they have a legal reason to evict them.

Other tenants can be evicted without a reason, but the landlord must give the correct notice and follow a set process.

Read more about the process for possession claims on Shelter Legal.

Right to repairs

Landlords have legal obligations to repair certain defects in the property. Tenancy agreements contain an implied term that a property is fit for human habitation.

Landlords must keep the structure and exterior of the property in repair. They must also keep the installations in the dwelling-house for the supply of water, gas, electricity, sanitation, space heating, and heating water in good repair and proper working order.

Read more about disrepair and safety responsibilities on Shelter Legal.

Quiet enjoyment

The right to quiet enjoyment means a tenant must be able to live in their property undisturbed by the landlord. The landlord must not visit the property or demand access to it without a good reason.

The landlord can gain access to carry out repairs and inspections by giving the tenant reasonable notice.

A landlord who visits or accesses the property without a valid reason or without giving reasonable notice could be harassing the tenant.

Read more about harassment by a landlord or letting agent on Shelter Legal.

What the contract covers

The contract covers individually negotiated tenancy terms, such as the amount of the rent and the period of a fixed term.

The contract terms can be set out in a written tenancy agreement or agreed verbally. An exchange of text messages or emails make up part of a written agreement.

The contract cannot give a tenant fewer rights than they already have in law. It can give them additional rights. The landlord must follow what is written in the agreement if it gives the tenant a longer notice to leave than the minimum the law allows.

Read more about tenancy and licence agreements on Shelter Legal.

Collateral contracts

The tenant could have a collateral contract, where the landlord has agreed to do something else like improve the property. A tenant could issue a court claim against their landlord if they breach the agreement.

The claim could be for money, or for strict performance of the contract. Strict performance is when the court orders a party to uphold their part of the contract.

The landlord can bring possession proceedings for unpaid rent even if they are in breach of a collateral contract. The tenant could counterclaim for breach of contract, but there is no guarantee it would succeed.

When the tenancy ends

Legislation has added protections for most residential tenants. The landlord must follow the rules to end the tenancy according to the tenancy type.

The tenancy continues after the date a possession order takes effect, regardless of whether the possession order is outright, suspended, or postponed if it is:

  • secure

  • assured

  • assured shorthold

  • regulated

  • introductory or demoted

The tenancy ends when the tenant leaves after the possession order is made or they are lawfully evicted.[5]

Contractual tenancy

A tenancy that is not covered by the Housing Acts or Rent Act is a contractual tenancy only. The common law rules apply to them. They are sometimes called an occupier with basic protection.

The tenancy of an occupier with basic protection ends on the expiry of the landlord's notice to quit, but they can remain lawfully in occupation until they are evicted by bailiffs with a warrant or writ of possession.[6]

A periodic contractual tenancy can be ended by the landlord serving a valid notice to quit.

A fixed-term contractual tenancy ends at the expiry of the fixed term.

When an occupier has a licence

The agreement to live in the property could be licence if it does not have all the required elements of a tenancy.

A licence is not a legal interest in the property. It gives the occupier fewer rights than a tenant. It includes a wide range of occupation types, including:

  • lodgers

  • hostel residents

  • service occupiers in tied accommodation

  • property guardians

  • hotel guests

People who live with friends or family have a type of licence called a bare licence.

Some licencees cannot be evicted without a court order. They have similar protection from eviction to a contractual tenant.

Other licencees are excluded from protection. For example, lodgers or people who have no liability to pay rent. Excluded occupiers can be evicted without a court order.

Sham agreements

An occupier is a tenant if their occupation meets the requirements for a tenancy even if the written agreement states it is a licence. Some landlords try to give a tenant fewer rights by describing the occupation agreement as a licence. This is known as a sham agreement.

Read more about sham tenancy agreements on Shelter Legal.

Last updated: 21 March 2023


  • [1]

    Street v Mountford (1985) 17 HLR 402, HL

  • [2]

    Rye v Rye [1962] A.C. 496, HL.

  • [3]

    Street v Mountford (1985) 17 HLR 402, HL

  • [4]

    Bruton v. London and Quadrant Housing Trust [1999] UKHL 26.

  • [5]

    s.299 and Schedule 11 Housing and Regeneration Act 2008, brought into force by Housing and Regeneration Act 2008 (Commencement No.5) Order SI 2009/1261; Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 SI 2009/1262; Housing (Replacement of Terminated Tenancies) (Successor Landlords) (Wales) Order 2009 SI 2009/1260(W.112); Knowsley Housing Trust v White; Porter v Shepherds Bush Housing Association; Honeygan-Green v Islington LBC [2008] UKHL 70.

  • [6]

    s3 Protection from Eviction Act 1977.