Secure tenancy or licence definition

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.

Flexible tenancies are a form of fixed-term secure tenancy. Find out more about flexible tenancies.

A tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when:

• both the 'landlord' and 'tenant' conditions are satisfied

• the tenancy is not specified as an exception

Some tenancies cannot be secure.[1] Find out more about tenancies that cannot be secure on Shelter Legal.

Tenant condition

The tenant condition is satisfied where the tenant occupies the dwelling as their only or principal home, or at least one of joint tenants occupies the dwelling as their only or principal home.[2]

Landlord condition

The landlord condition is met where the landlord is a prescribed public body.[3]

The list of prescribed bodies includes local authorities, district councils, London borough councils, county councils, and housing action trusts.

Before 15 January 1989 most housing associations and housing co-operatives were also included in the landlord condition. 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 are 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 they are a secure tenant.[4]

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]

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]

A licensee has a secure licence only if they have exclusive possession of a dwelling-house or part of a house that is 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 their 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. Only persons of 18 years or over can hold a tenancy.

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 (for example 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 they have 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]

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

The tenant must occupy the property as their only or principal home for their tenancy or licence to remain secure.[16]

The tenant must occupy the home, and it must be their 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.

Effect of subletting

A tenant does not have to occupy the whole of the premises because they can sublet a part of their 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.

Effect of lengthy absences

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 is on the tenant to show they have an intention to return

• it is not 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'

The focus will be on the tenant's enduring intention and will not be displaced by fleeting changes of mind.[20] This might be an important consideration where the tenant has a mental illness, is terminally ill or has been admitted into long-term residential care.

The High Court held that a tenancy continued to be secure where the tenant was absent from the property but intended to return after exercising the right to buy.[21]

Security when a tenant occupies 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 when 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'.[22]

Where a tenant has left and a non-tenant spouse or civil partner (but not another type of cohabitee) remains in the property, they will have the right to remain in the property as if they were the tenant and the residence requirement will therefore be fulfilled.[23]

A cohabitee with an occupation order would also have this right.[24]

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 by resuming occupation before the contractual tenancy has been ended by the expiry of a notice to quit.

However, this does not apply if the secure tenancy has been lost by the tenant subletting or parting with possession of the whole of the premises.[25]

Periodic

Most secure tenancies are granted for an indefinite period with the rent being paid on a periodic basis for example weekly or monthly.

Fixed term and statutory periodic

A tenancy may be granted for a set (fixed) period of time, for example, one year. If the tenancy carries on after this time, without a further fixed term being granted, the tenancy becomes statutory periodic. Once a fixed-term tenancy becomes statutory periodic, it can be ended in the same way as a periodic tenancy.

From 1 April 2012, a landlord who is capable of granting a secure tenancy can grant flexible tenancies, a form of fixed-term secure tenancy.[26]

The Housing Act 1985 provides that the terms of a secure tenancy can only be varied where:[27]

• the variation is by agreement between the landlord and tenant, or

• the variation is of the rent or payments for rates, council tax or services, and the variation is in accordance with a provision of the tenancy agreement providing for such changes, or

• in relation to a periodic tenancy, the landlord gives notice of that variation

In respect of periodic secure tenancies the landlord normally has to serve the tenant with a preliminary notice:[28]

• informing the tenant of its intention to serve a notice of variation

• specifying the proposed variation and its effect,[29] and

• inviting the tenant to comment on the proposed variation within a 'reasonable' time, which must be specified in the notice

The landlord must consider any comments made by a tenant within the period specified in the preliminary notice.

There is no requirement to serve a preliminary notice where the variation relates to rent, rates, or payments for services or facilities,

The landlord may then serve the notice of variation itself which must specify the variation and the date from which the variation will take effect – which must be at least four weeks or the rental period, whichever is longer. Along with the notice, the landlord must provide information that the landlord considers necessary to inform the tenant of the nature and effect of the variation.[30]

Where the landlord has included a term within the tenancy agreement allowing for variation of the tenancy agreement in a different way than the statutory framework allows, that term of the agreement will be void. This is so even if the term is beneficial to the tenant (for example, stating that variation can only occur where a majority of a tenants association agree to the change).[31]

Advisers should be aware that where proposed variations relate to a housing management issue, the landlord may also be required to carry out the consultation required by section 105 of the Housing Act 1985.

Advisers should also remember that certain terms implied by statute, such as section 11 of the Landlord and Tenant Act 1985 may not be varied by this method or otherwise.