Tenancies that cannot be secure
Tenancies cannot be secure even when they fulfil the conditions of a secure tenancy if they fall within one of the statutory exceptions.
- Tenancies that cannot be secure
- Long leases
- Introductory tenancies
- Premises related to employment
- Tenancies of land acquired for development
- Accommodation provided under homelessness legislation
- Temporary accommodation for people taking up employment
- Private sector leasing
- Temporary accommodation during works
- Agricultural holdings
- Licensed premises
- Lettings to students
- Business tenancies
- Asylum seekers
Tenancies that cannot be secure
A tenancy or licence that fulfils the above criteria cannot be secure if it falls within one of the exceptions given in Schedule 1 of the Housing Act 1985 and listed below. This applies equally to Flexible tenancies, a form of secure tenancy.
Some tenants of local authorities have 'non-secure' tenancies. Non-secure tenants only have basic protection under the Protection from Eviction Act 1977.
Premises related to employment
A tenancy is not secure if it is granted to an employee who is required by his contract of employment to live in that accommodation for the better performance of their duties.
There are two aspects to this exemption. Firstly, the employment contract requires the employee to occupy a particular property. Secondly, this has to be for the better performance of his duties, which is a matter of fact. The second aspect can be express or implied, written or oral. If this exemption is satisfied then the employee is a service occupier.
In addition, a tenancy cannot be secure if the property has been let on the above exemption within the three years prior to the grant of the tenancy. The landlord must also have notified the tenant that this exemption applies prior to the grant of the tenancy.
Tenancies of land acquired for development
A tenancy of a dwelling on land initially acquired for development that is currently being used as temporary accommodation by the landlord.
Accommodation provided under homelessness legislation
A tenancy granted to a homeless household as part of any function under Part 7 of the Housing Act 1996 will not be secure, unless the local authority has notified the tenant that it is to be regarded as a secure tenancy. This could include accommodation provided by a local authority:
under the prevention duty or the relief duty but which is not an allocation
in discharge of interim duty (excluded occupation)
under main housing duty until it can be ended (normally by an allocation or private rented sector offer)
pending referral to another authority
to give an intentionally homeless applicant reasonable opportunity to secure accommodation
under a duty to an applicant who has 'deliberately and unreasonably refused to cooperate' with the authority
See Local authority homeless duties for more information.
This also includes cases where a local authority has exercised a power to accommodate pending a review.
Temporary accommodation for people taking up employment
A tenancy granted to a person who is taking up employment in a district, who is not normally resident in that district, and who requires temporary accommodation to enable them to secure permanent accommodation will not be secure. This exemption applies if the landlord has given prior notification to the prospective occupier. If the landlord is a local authority, the tenancy will only become secure if the landlord informs the tenant that it is to be secure.
For other landlords (capable of granting a secure tenancy), such a tenancy will become secure after 12 months.
Private sector leasing
A tenancy of a dwelling-house which has been leased from a private landlord to a local authority for use as temporary accommodation will not be secure. The private landlord must not be a body capable of granting secure tenancies and must be able to obtain vacant possession at the end of a specified period or when required. The landlord authority must not have any other interest in the property other than that under the current lease.
Temporary accommodation during works
Tenancies granted on a temporary basis whilst works are carried out to the occupier's previous property is not secure unless the occupier was a secure tenant at their previous accommodation.
A tenancy is not secure where the property is part of an agricultural holding and the tenant is responsible for the farming of the holding. This exemption is designed to exclude tenant farmers from security.
A tenancy of property that is part of premises licensed to sell alcohol for consumption on the premises is not secure.
Lettings to students
A tenancy is not secure if it is granted to a student to enable them to attend a designated course provided that the landlord gave notice of this before the start of the tenancy, specifying that this exception applies and specifying the proposed educational establishment. Where the landlord is a local authority, this exemption ceases at any time if the landlord notifies the tenant that they are to be a secure tenant.
In all other cases, the tenant remains non-secure until six months after they cease to attend the educational establishment or if the tenant fails to take up the course within six months of the tenancy being granted.
A tenancy to which Part 2 of the Landlord and Tenant Act 1954 applies cannot be secure. This covers any tenancy where the property is occupied for the purposes of a business (apart from a 'home business tenancy'). The business use must be a significant, rather than incidental, reason for occupation.
'Home business tenancies'
For secure tenancies created on or after 1 October 2015, the landlord can permit a tenant to operate a 'home business' and retain their secure status.
A 'home business' is one that can reasonably be carried on at home such as internet businesses, financial consultancy, advertising copywriting, or a translation service. A landlord should not withhold consent to a 'home business' unreasonably, but may do so if the business would result in significant wear and tear to the property, or cause a nuisance to neighbours.
A licence to occupy an almshouse is not secure if the licence was granted by a charity that is authorised under its trusts to maintain the dwelling as an almshouse and has no power to grant tenancies.
Asylum seekers who have been housed under Part 6 of the Immigration and Asylum Act 1999 cannot have a secure tenancy unless the landlord informs the tenant that it is to be secure. It may be necessary to establish when they arrived in the country and where they claimed asylum.
Last updated: 16 March 2021
para 1, Sch.1 Housing Act 1985.
Banjo v Brent LBC  EWCA Civ 292.
para 1A, Sch.1 Housing Act 1985.
s.124(2) Housing Act 1985.
para 2, Sch.1 Housing Act 1985.
Wragg v Surrey CC  EWCA Civ 19.
Godsmark v Greenwich LBC  EWHC 1286, Ch D.
para 3, Sch.1 Housing Act 1985.
para 4, Sch.1 Housing Act 1985; Wandsworth LBC v Tompkins  EWCA Civ 846.
para 5, Sch.1 Housing Act 1985.
para 6, Sch.1 Housing Act 1985; Tower Hamlets LBC v Abdi  9 WLUK 59; Cfr. Hickey v Haringey LBC  EWCA Civ 373; Mohamed v Barnet LBC  EWHC 1012 (QB).
para 7, Sch.1 Housing Act 1985.
para 8, Sch.1 Housing Act 1985.
para 9, Sch.1 Housing Act 1985.
para 10, Sch.1 Housing Act 1985.
para 11, Sch.1 Housing Act 1985.
ss.35 and 36 Small Business, Enterprise and Employment Act 2015; Small Business, Enterprise and Employment Act 2015 (Commencement No.2 and Transitional Provisions) Regulations 2015 SI 2015/1689; Small Business, Enterprise and Employment Act (Commencement No.1) (Wales) Regulations 2015 SI 2015/1710.
s.43ZA Landlord and Tenant Act 1954 as amended by s.35 Small Business, Enterprise and Employment Act 2015; see also section C3(2) of the Model Agreement for an Assured Shorthold Tenancy, DCLG, October 2015.
para 12, Sch.1 Housing Act 1985.
para 4a, Sch.1 Housing Act 1985 as inserted by para 81, Sch.14 Immigration and Asylum Act 1999 from 11 November 1999. See also s.3A(7A) Protection from Eviction Act 1977.