Entering Into a Tenancy

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    Entering Into a Tenancy

    A tenancy is a type of land right known as the leasehold estate in land which gives the tenant exclusive possession of the landlord’s property for a specific amount of time — requiring a two-part process to enter into one. What you can (and can’t) do during your tenancy and how you or your landlord can end your tenancy will depend on:

    • the type of tenancy that you have
    • the terms in your tenancy agreement; and
    • the laws affecting your tenancy at the time.

    This housing guide will explain the steps needed to enter into a valid tenancy. Read our housing guide: Types of Tenancy for more information.

    Landlord and tenant

    Entering into a tenancy creates a special type of relationship called 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 obligations that they must follow, too.

    A two-step process

    Creating a tenancy requires more than just signing a tenancy agreement and involves a two-step process. To enter into a tenancy, you must have:

    Additionally, to have a statutory tenancy, such as the Assured Shorthold Tenancy, you will need to follow statutory laws for statutory tenancies.

    Tenancy agreement

    Creating a tenancy requires entering into an agreement for the property or room that you’ll be renting. The tenancy agreement is the contract between you and your landlord, which can be written or verbal and is legally binding once signed or verbally agreed to.

    The tenancy agreement doesn’t automatically create your tenancy, instead it details yours and your landlord’s rights and responsibilities during your tenancy. In the event of a dispute regarding your occupation status, a valid tenancy agreement can help show that you are a tenant and not some other type of occupier. Regardless of the type of tenancy that you have, you will always have a tenancy agreement.

    Top Tip: For more information about the contract used to enter into a tenancy, read our guide: Tenancy Agreement.

    Elements of a tenancy

    In addition to the tenancy agreement, you must have all of the elements of a tenancy present in your living arrangement. The elements of a tenancy come from the common law, you can read more about this in our previous guide: Types of Tenancy. If your tenancy agreement was created correctly, then you’ll have met most of the elements once you move in.

    The elements of a tenancy are:

    Exclusive possession

    Exclusive possession is the right to the use, control and enjoyment of a property, to the exclusion of the landlord, within the terms of your tenancy agreement. You must have exclusive possession of the whole of the property or a part of it, such as a bedroom. Your landlord has the ultimate right to take back possession of their property at the end of your tenancy. Exclusive possession is a key element in deciding whether you have a tenancy or some other type of living arrangement, such as a licence. Tenants have more legal rights and security compared to licencees.

    Top Tip: Read our guide: Types of Tenancy to find out more about the different types of tenancies and the rules that apply to them.

    What is possession?

    Once your tenancy starts, you gain the right to possession of the property. Taking possession of a property means that you have taken control of the property, to some degree. This could mean that you’ve taken possession of all aspects of the property or a certain part of it, like a bedroom, in the case of shared housing. You take possession or control of your landlord’s property on the date that your tenancy starts, which is stated in your tenancy agreement.

    Taking possession of a property doesn’t necessarily mean physical possession so, you might move into the property at a later date after your tenancy start-date. If you live in shared housing where each tenant has signed individual tenancy agreements, then you each may have different tenancy start-dates.

    Leaving the property from time to time does not mean that you have given up possession. For some tenancies, like the Assured Shorthold Tenancy, you must live in the property as your main or only home. This is a statutory requirement that the tenant must use the property as a primary home to live in and not a business to work out of.

    Top Tip: Using the property as your main or only home is different to possession. Read more on this statutory requirement in our guide: Assured Shorthold Tenancy (section: Main or Only Home).

    How possession becomes exclusive

    You will have ‘exclusive possession’ of a property, once your tenancy has started and you can exclude your landlord and other third-parties from the property. If you live in shared housing, all the tenants must have exclusive possession of the property or a part of it. This is usually your bedroom, if you signed individual tenancy agreements, or the whole of the property if all the tenants signed one tenancy agreement as joint tenants.

    When possession is not exclusive

    If you landlord has free access to the property or your bedroom (not including your landlord’s right to access the property to do repairs upon giving notice or for emergencies), then you won’t have exclusive possession and can’t have a tenancy. You might have a licence instead.

    Identifiable property

    Land includes the property attached to it. The property must be identifiable.

    Specific term

    When you and your landlord enter into the tenancy agreement, you will agree a duration for your tenancy, this is known as the contractual term which is the minimum amount of time that you must hold your tenancy. The contractual term must be specific. To be specific, your tenancy must either be for a fixed or periodic term, with an identified start date. Tenancies can often run on longer than the contractual term, for example if you renew your tenancy or continue as a statutory periodic tenancy at the end of your contractual term. The entire duration of your tenancy is know as the term.

    Less than the landlord’s term

    Along with being specific in duration, your tenancy must not last longer than your landlord’s term. Your landlord will either be the property owner who owns the property indefinitely, or a sub-tenant who owns or rents a longer tenancy from the owner or head tenant. At the end of your contractual term, your landlord has the right to possession of their property as long as they follow the correct process to end your tenancy. This is known as the landlord’s right of reversion.

    Statutory laws for statutory tenancies

    There are additonal requirements that must be met in the case of statutory tenancies. These statutory requirements apply to the Assured Shorthold Tenancy (AST). Failure to meet the statutory requirements will mean that your tenancy cannot be an AST. However, you may still have a common law tenancy.

    Top Tip: Find out more about the AST by reading our guide: Assured Shorthold Tenancy.

    Paying rent

    To have a statutory tenancy, like the Assured Shorthold Tenancy, you must pay rent, This is a statutory requirement. Rent is not always required to be able to create a common law tenancy but it can be used to prove that your landlord intended to give you a tenancy, if a dispute arises. In reality, it is extremely rare for any tenancy to be created without paying rent.

    The amount of rent that you’ll pay is determined by your tenancy agreement. For statutory tenants, the amount of rent that your landlord can charge you might be statutorily controlled or restricted. For example, the AST has statutory controls on the fees that your landlord can charge during your contractual term. Whether your landlord has the right to increase your rent will depend on the type of tenancy that you have.

    Top Tip: Find out more about different tenancy types by reading our guide: Types of Tenancy.

    Using the property as your main or only home

    Using the property as your main or only home is a statutory requirement to be able to have an Assured Shorthold Tenancy.

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