02. Private tenancies

On the following pages, there are explanations of the law, and how to deal with particular problems that can arise for tenants and landlords. First, you must establish what sort of agreement you are dealing with. Most people have one of four types:

• an 'assured shorthold' tenancy;
• an 'assured' tenancy;
• a 'regulated' (or protected) tenancy; or
• a licence.

If you have a tenancy, the type you have depends largely on when it began. If the tenancy started on or after 28 February 1997, it is probably an assured shorthold tenancy, unless the landlord has told you in writing that it is an assured tenancy. The tenancy may start either with a fixed term or as a 'periodic' tenancy, running from week to week or from month to month (depending on when rent is paid). Either way, the tenant usually has the right to stay for at least six months.

If the tenancy started between 15 January 1989 and 27 February 1997, it will probably be an assured shorthold tenancy if the landlord made this clear on a special legal form at the beginning. Otherwise, it will be an assured tenancy. The tenancy must have had a fixed term of at least six months to begin with.

Most private tenancies which started before 15 January 1989 are regulated (or protected) tenancies. This type of tenancy has the most protection against rent increases or eviction.

If you are a tenant and you are unsure what type of tenancy you have, check your tenancy agreement. If you don't have one, ask your landlord for a copy.

People with a licence
Some people who rent privately have a licence rather than a tenancy. People with a licence (licensees) have less protection than tenants. They include people:

• who live in holiday accommodation or a hostel;
• who are students living in halls of residence;
• whose landlord provides services such as meals or room cleaning;
• whose name isn't on the tenancy agreement (including young people who are still living with their families);
• who live in their home as a condition of their employment; and
• who live in the same building as their landlord and who share living space with the landlord or a member of the landlord's family.

People who don't pay rent are also licensees.

If a tenant wants to end the tenancy
If a tenant on a periodic tenancy wants to leave, they can do so by giving the landlord notice, usually four weeks. If a fixed-term tenancy has not finished, the landlord can insist that the tenant pays rent until the end of the fixed term.

Some fixed-term tenancies have a 'break clause', which allows a tenant to leave before the fixed term expires. If there is a joint tenancy, and one tenant wants to leave, the legal situation can be complicated, and the remaining tenants should get advice.

If a landlord wants to end the tenancy
Most landlords of private tenancies must give written notice if they want a tenancy to end and the tenants to leave, though this does not always apply to licensees. If the tenant does not leave by the end of the notice period, the landlord can start 'possession proceedings' in the county court. The tenant does not have to leave at the end of the notice period, but they may have to pay the landlord's costs of going to court if they don't. If a tenant is likely to become homeless when they leave, they should get advice before leaving. They may not get help with housing from the council if they leave before the landlord gets a court order. The council will take the reason for the eviction into account when deciding whether it will offer help with housing. If the court awards a 'outright possession' order, and the tenant still does not leave, the landlord can ask the court to call in bailiffs to evict them.

If the landlord wants possession because the tenant has not paid their rent, the court may, in some cases, grant:

• a 'suspended order', which allows the tenant to stay in their home as long as they pay off a certain amount each month or week;
• an 'adjournment', where the hearing is put off, as long as the tenant agrees to pay a certain amount; or
• an 'adjournment on terms', where the hearing is put off for a period of time as long as the rent is paid and a certain amount is paid regularly towards the arrears.

Assured tenancies
With an assured tenancy, the landlord must first give the tenant a legal notice, called a 'notice of seeking possession'. If you get a notice like this, you should get advice immediately.

Depending on the reasons ('grounds') for possession, the landlord must give the tenant either two weeks' or two months' notice that they intend to apply for a possession order. But if they are seeking possession because of the tenant's anti-social behaviour, they can start possession proceedings immediately after giving notice.

The tenant may either:

• go to court and argue against the landlord's claim (that is, argue that the landlord doesn't have the right to end the tenancy); or
• wait to see if the court issues a possession order.

The landlord must first prove to the court they have a reason for possession. If the landlord gives certain reasons (known as 'mandatory grounds') the court will automatically grant possession. These include where:

• the tenant is at least two months or eight weeks behind with the rent;
• the landlord used to live in the property(or they now need to) and they made the tenant aware of this at the start of the tenancy;
• the landlord is going to demolish or rebuild the property; or
• the landlord's bank or other mortgage lender is repossessing the property.

Other grounds are 'discretionary'. This means the court will decide whether it is reasonable to grant possession or not. The most common discretionary grounds are that:

• the tenant has missed rent payments, but is not more than two months or eight weeks behind;
• the tenant has damaged the property or broken a term of the tenancy agreement;
• the tenant has been a nuisance to their neighbours; or
• the landlord can prove that the tenant can find somewhere else to live, either from the landlord or from someone else.

If the tenant has missed rent payments, the court may suspend the order so that the tenant can pay off the rent they owe without losing their home. If the landlord offers another place to live, the court must be satisfied that it is suitable for the tenant's needs. This means taking account of:

• where the tenant works;
• where their children go to school; and
• whether they need to live near a family member.

The tenant can dispute the landlord's offer in court if they think it is not suitable. The court would consider that an alternative place to live was not suitable if it had a tenancy which gave the tenant fewer rights than they currently had.

Assured shorthold tenancies
People with assured shorthold tenancies have less protection than assured tenants.

If the landlord wants the tenant to leave within the first six months of the tenancy, they have to show they have a reason to evict the tenant, in the same way they do for an assured tenancy.

If the tenant has had the tenancy for six months or more, the landlord can get a court order without having to prove they have a reason and without having to attend a hearing. This is called the 'accelerated possession' procedure. But to do this, the landlord must give the tenant at least two months' notice in writing that they want possession, and they cannot go to court to get possession until that notice period ends.

As long as the landlord has followed the procedures properly, the court will automatically grant them possession. But the tenant can still ask for a possession order to be delayed for a short time if it would cause them 'exceptional hardship'.

Regulated tenancies
The landlord must first end the tenancy by giving the tenant a 'notice to quit' (unless an end date was agreed at the start of the tenancy). This must give the tenant at least four weeks' notice and be in a special legal form. The landlord must then apply to the court for a possession order.

As with assured tenancies, there are certain 'mandatory' grounds for which the court will automatically grant possession, as well as 'discretionary' grounds for which the court must decide whether it is reasonable to evict the tenant (see 'Assured tenancies'). Many of the grounds that can be used are similar to those for assured tenancies, but there are some differences.

Licensees
Licensees have fewer rights than tenants (see 'People with a licence' for more about who is a licensee). In some types of agreement (licence), the landlord may need to give the licensee only 'reasonable' notice that they want them to leave, which might not need to be in writing. Otherwise, they need to give at least four weeks' written notice on a special legal form, or wait for the agreed fixed term of the licence to end. After this, the landlord has to get a court order to evict the tenant.

Licensees and their landlords should get advice about how the agreement can be ended. Where a possession order is needed, the courts will automatically agree to it, but this could delay the eviction by up to six weeks.

For licensees entitled only to 'reasonable' notice, there are no set rules about what is 'reasonable'. However, if a written agreement says how much notice the landlord has to give, this will be the minimum amount.

If you are a licensee whose home is provided as part of your job, your right to live there will probably end when your job does.

If the landlord gets a possession order
If the court grants the landlord 'outright possession', the possession order will set a date for the tenant to leave. Once the date of the order has passed, the landlord can apply for a warrant if the tenant has not left. If this is granted, the court will tell the bailiffs to evict the tenant. The landlord has the right to claim payment for the time the tenant continues to live in the property.

If you are a tenant and you receive a bailiff 's warrant, you should get advice immediately. You may still be able to stop the eviction by getting the court to 'suspend' the warrant. But you must have a good reason and show you have a realistic plan to pay off any rent you owe.

Harassment and illegal eviction by a landlord
It is generally illegal for a landlord to evict a tenant without a court order. This includes, for example, changing locks while the tenant is out. In a few situations the tenant doesn't have this protection. The most common is where they share the living space with their landlord.

If you are a tenant who is being harassed, or you are facing illegal eviction by a private landlord, contact the tenancy relations officer at your local council (or the council officers who deal with harassment and illegal eviction). The council officer should try to stop the harassment and persuade the landlord to let you back into your home. If this fails, they can prosecute the landlord, although this happens only in extreme cases.

Tenants can also take action in court themselves, though they would need expert legal help to do this. You can apply for an injunction to stop the landlord harassing you or to let you return to your home. You should also be able to claim compensation. If the case is urgent, you can get an emergency injunction before there is a fuller court hearing.

The Protection from Harassment Act 1997 also offers protection against harassment by any person -including a landlord, even where they are not necessarily trying to evict a tenant.

Deposits
A landlord will normally ask for a deposit from the tenant before they move in. Both the landlord and the tenant should make sure that the tenancy agreement states:

• how much the deposit is;
• who holds it;
• when money can be deducted from it (for example, for unpaid rent or damage to the property); and 
• when the tenant will get the money back.

If, when the tenant leaves, they don't get their deposit back, and there is not a good reason for this, they can claim against the landlord through the courts as a 'small claim'. This is a simpler, quicker and less expensive way of using the courts than a full hearing, but can be used only for claims up to £5,000. You can get forms and more details from your local county court, Citizens Advice Bureau or legal advice centre, or from the court service website (see 'Further help').

Rent increases
A landlord's right to increase rent depends on the type of tenancy.

Assured tenancies
People with assured tenancies can sometimes challenge a rent increase. If the tenancy is for a fixed term, the rent is normally agreed at the start and cannot change during that term. The only exception to this is if the tenancy agreement includes a rent review or increase arrangement (or if the tenant agrees to an increase).

With a periodic tenancy (one which runs from week to week or from month to month, depending on when the rent is paid), the rent can go up in the first year only if the tenancy agreement allows for this.

After a year, the landlord can increase the rent by giving at least one month's notice on a special form. If the tenant thinks the new rent is too high, they can contact their local Rent Assessment Committee (RAC). RACs are independent bodies which deal with rent issues. Your local RAC will be listed in the phone book. RACs can set the rent according to what is charged elsewhere in the area. They can uphold the landlord's rent demand (or even increase it) as well as reduce it. The rent fixed by the RAC is the maximum the landlord can charge for one year.

Assured shorthold tenancies
The landlord's right to increase rent on assured shorthold tenancies is the same as for assured tenancies. A tenant can apply to an RAC at the start of a tenancy if they think the rent is excessive.

If your tenancy started between 15 January 1989 and 28 February 1997, you can challenge the rent any time during the initial fixed term. If your tenancy started after 28 February 1997, you can challenge the rent within six months of the start of the tenancy. But it may be risky to do this, as the landlord can legally evict you at the end of the tenancy period. If you have an assured shorthold tenancy, you need to get advice before you challenge any rent increase.

At the end of the fixed term, the landlord may offer another fixed term at a higher rent. If the tenant signs a new agreement, they cannot then apply to the RAC to set the rent.

Regulated tenancies
Tenants and landlords with regulated tenancies can apply to the Rent Service to set a 'fair rent' (the Rent Service number is in the phone book). The Rent Service can put the rent up as well as down. If the fair rent is lower than the tenant has been paying, the tenant may be able to get back up to two years' overpaid rent. If the fair rent is higher than the tenant has been paying, the landlord must give notice before they can start charging the higher rent.

A fair rent is set for two years, but the tenant or the landlord can appeal to the RAC. It may either increase or decrease the rent set by the Rent Service. After two years, or if there has been a significant change in the property's condition, the landlord or the tenant can apply for a new fair rent.

Other private renting arrangements
For other types of tenancy (often where the landlord lives with the tenant) the landlord can charge any rent they wish. Unless there is a written agreement saying how and when rent may be increased, the only option for the tenant is to negotiate with the landlord -or leave.

Responsibility for repairs
Many written tenancy agreements say which repairs the landlord must do and which ones the tenant must do. If the agreement is for less than seven years, the Landlord and Tenant Act of 1985 means there are certain things that all landlords must keep in good repair, whether or not there is a written agreement. These are:

• the structure and outside of the property;
• water, gas, electricity and drainage installations; and
• heating and hot water systems.

Landlords must also maintain gas flues and appliances belonging to them, and get them tested every year by a Council for Registered Gas Installers (Corgi) gas fitter. They must also give the tenant a copy of the safety certificate.

In furnished flats and houses, upholstery and soft furnishings must meet fire regulations.

For tenancies that started on or after 15 January 1989, the landlord must also keep the common areas (shared stairways, hallways and lifts, for example) in good repair. In a block of flats, they must do necessary work on any empty flats they own (for example, to prevent leaking pipes affecting flats below).

If your tenancy started before 15 January 1989, the situation is more complicated. Your landlord's responsibilities will depend on whether your contract says you are responsible for common areas. If your tenancy started before this date you should get advice.

'Keep in repair' includes doing repairs which were already needed when the tenancy started, and not just problems that have arisen since. The landlord must also 'make good' or redecorate when a repair is finished. As long as the landlord gives notice, they normally have the right to come into the tenant's home to check its condition and do any repairs that are needed. They should give notice of at least 24 hours in writing, except in an emergency.

Legally, repair is not the same as renewal or improvement of a property. If you're not sure whether something counts as a repair, a housing aid centre or other advice
centre should be able to help you.

Getting repairs done
The tenant (or tenants' association) should tell the landlord about things that need repairing as soon as possible. It is best to do this in writing and keep copies of the letters.

If the repairs aren't done, the tenant should get advice from a Citizens Advice Bureau or housing advice centre. This is because, depending on the type of tenancy, the landlord could try to:

• evict the tenant at the end of the tenancy period rather than do the repairs (assured shorthold tenants and licensees could be at risk of this); or
• increase the rent when repairs have been done (this could affect regulated  tenants).

In many situations, though, it is still worth taking action. If the tenant has told the landlord about repairs and they are not done in a reasonable time, or not done properly, the tenant can make a claim in the county court. You should get expert advice before doing this (see 'Further help' on page 23 for where to find help). The court can order the landlord to do the repairs. It can also award the tenant compensation for distress and inconvenience.

A quicker option may be to get an injunction from the courts, which forces a landlord to do the repairs (again, you will need advice before doing this). This may be combined with a claim for compensation. Whatever happens, you should never stop paying rent, as this could give the landlord a reason to evict you.

If a tenant has to move out while major repair work is done, they may be able to claim the cost of somewhere else to stay. But you should get advice before doing this, because even a temporary move could mean losing some rights as a tenant.

If you stay while the work is done, you may be able to claim compensation from the landlord for discomfort and inconvenience.

If the house or flat is unsafe
If a home is not 'fit for human habitation' (its condition is seriously affecting the health or safety of the tenants) or if it needs other kinds of major repairs, the tenant should contact the local council's environmental health officer. The council can order the landlord to do the repairs. If they don't do them within a reasonable time, the council can:

• take the landlord to court; or
• do the work itself and get the cost back from the landlord.

If the condition of the house or flat is affecting a tenant's health, and the local council won't do anything, the tenant can get the magistrates' court to force the landlord to fix the property (under the Environmental Protection Act 1990). You will need expert advice to do this.

If the tenant arranges their own repairs

If the landlord won't do minor repairs, a tenant can get the work done themselves. You can take the cost of the repairs out of your rent. But you must get advice first, because you must follow a special procedure, as follows:

1. Write to the landlord explaining that you are going to do the work yourself if the landlord doesn't do it within a reasonable time (two weeks, for example).
2. If the work is not done in this time, get three quotes for the work.
3. Send the quotes to the landlord with a letter explaining that you will go ahead with the cheapest quote unless the landlord arranges for the repairs to be done within a certain time (two weeks, for example).
4. If the work is not done in this time, arrange for the work to be done by the company or tradesperson who provided the cheapest quote.
5. Pay for the work and send a copy of the receipt to the landlord.
6. Ask the landlord to refund the money.
   

If the landlord does not refund the money, write to them explaining that you are going to take the money from future rent payments. If you don't follow this procedure, you may still be liable to pay all the rent.

And people with assured shorthold tenancies can still be evicted for not paying all their rent even if they have followed the procedure.

Making improvements to the house or flat
Private tenants can make improvements to their home only if the landlord has given their written agreement first. Tenants cannot claim back the money they've spent, but the landlord cannot put up the rent because of improvements made by the tenant.