Housing Knowledge Base
Types of Tenancy
For most students, renting is a usual part of the student experience; but have you ever wondered what type of tenancy you have or the protections that it can give you during your tenancy? Read on to find out more about the types of tenancies that students and short-term renters have and the security that each type can provide.
What is a tenancy?
A tenancy is a type of land right known as the leasehold estate in land, which gives a tenant exclusive possession of the landlord’s property for a specific amount of time. There are different types of tenancies created by laws that provide varying levels of security and rights to you, as a tenant.
Landlord and tenant
Entering into a tenancy creates a special type of legal relationship known as landlord and tenant. As a tenant, you are responsible for all of your rights and duties under the tenancy so, it’s important that you understand your tenancy agreement and follow the terms within it. Your landlord will also have duties that they must follow, too.
How the law fits in
Every tenancy is governed by three sources of law: the common law, statutory law and contract law, which work together to form different types of tenancies. How you create your tenancy, what you can and can’t do during your tenancy and how you and your landlord can end your tenancy will depend on:
- the type of tenancy that you have
- the laws affecting your tenancy at the time; and
- the terms in your tenancy agreement.
The everchanging nature of law means that every tenancy is unique to the parties to that tenancy. There are however, some ground rules that come as standard and for the benefit of both parties, these terms cannot be contracted out of.
Common law
The common law is the general underpinning of a tenancy and is based upon pieces of law created from judicial decisions from court cases. Essentially, when a court case goes before a Judge, the Judge has discretion to make alternative rulings which do not follow previous case law of a similar topic. These rulings are known as precedents, which can then be used as sources of law in subsequent cases of a similar topic. Regardless of the type of tenancy that you have, you cannot create or end a tenancy without the use of the common law.
Common law tenancy
The common law tenancy was created by the common law and provides tenants with a limited amount of statutory protection but does not provide security of tenure. As a result, the common law tenancy is largely goverened by the terms in your tenancy agreement and as such it is often known as a contractual tenancy or a basic protection tenancy due to it’s limited amount of security. The following are examples of statutes that provide common law tenants with some statutory protection during their tenancy:
- The statutory obligation to ensure a rented property is fit for human habitation – implied into all common law tenancies by the Homes (Fitness for Human Habitation) Act 2018
- The statutory right to Protection From Eviction, which means that your landlord can’t evict you at the end of your tenancy without a court order – implied into all common law tenancies by the Protection From Eviction Act 1977
Statutory law
While the concept of the tenancy was created by the common law, statutory laws provide tenants with additional security but differ in that they are created and modified through a legislative process in Parliament. Some statutes create tenancies known as statutory tenancies, while other statutes regulate and provide protection for all types of tenancies.
The everchanging nature of statutes means that new rules affecting your tenancy can be added and changed at any time, regardless of whether you are aware, this is because statutory laws are automatically implied into your tenancy.
Statutory tenancies
Tenancies that are created by statute are known as statutory tenancies. There are different types of statutory tenancies created by different statutes, each providing varying degrees of protection. Depending on the statutes regulating it, a statutory tenancy can provide a tenant with the right to a fair rent or rent that is controlled. The Assured Shorthold Tenancy (AST) is the most common type of statutory tenancy, which was created and regulated by the Housing Act 1988. If you’re renting from a private landlord or letting agent then you will most likely have an AST. Where your tenancy cannot be an AST, then in most cases you will have a common law tenancy. A common law tenancy does not provide as much protection compared to the AST.
Contract law
The final source of law that governs every tenancy is contract law. To be able to enter into a tenancy, you must first enter into a tenancy agreement. The tenancy agreement is a contract and all the principles of contract law must be present for it to be valid. The contractual term of your tenancy is the initial duration of your tenancy that you agreed to in your tenancy agreement. The full term or duration of your tenancy can run on longer than your initial agreed contractual term, for example if you decide to continue your tenancy at the end of your contractual term under a statutory periodic tenancy.
For common law tenancies and excluded tenancies, once your tenancy agreement is created, your tenancy is covered under common law, but is largely goverend by the contract terms in your tenancy agreemeent. For example, to end the contractual part of your tenancy you must use the common law to serve a notice to your landlord and vice versa.
Excluded tenancy
An excluded tenancy is a tenancy that does not benefit from security of tenure i.e. the Protection From Eviction Act. The main difference between a common law tenancy and an excluded tenancy is that excluded occupiers can be lawfully evicted without a court order once their contractual term has ended.
Ending a tenancy
For common law tenants, you have the right to stay in the property until your contractual term has ended, and subject to protection from eviction laws. For statutory tenants, you have the right to stay in the property after your contractual term has ended, under a statutory periodic tenancy, as long as your landlord has not started the process to gain possession of their property (eviction). For excluded tenants, you have the right to stay in the property until your contractual term has ended, at which point you can be evicted without a court order of possession.
