T he tenancy is a type of land right that gives a tenant the right to live in the landlord’s property for the agreed amount of time, requiring a two-or-three-part process to enter into one.
Landlord and tenant
Entering into a tenancy creates a special type of relationship called landlord and tenant. Contrary to popular belief, creating a tenancy requires more than just signing a contract. While a tenancy agreement is important, creating a valid tenancy involves multiple sources of law that include:
The tenancy is therefore both a personal, contractual relationship as well as a legal right in land capable of binding everyone and capable of exisiting indecently of the contract used to create it. As a result, how you create your tenancy, what you do during your tenancy, and how you or your landlord can end your tenancy will differ depending on each source of law and what type of tenancy that you have. Lucky for you, My Uni House is going to explain it all to you!
Common law is the general underpinning of a tenancy. The common law is made up of pieces of law created from one off decisions from court cases. Regardless of the type of tenancy that you have, you cannot create or end a tenancy without the use of common law.
If you have a tenancy that is not regulated by statute (explained in the following section), then you have what is called a Common Law Tenancy, sometimes known as a non-statutory tenancy. Despite not being created by statue, all common law tenancies are affected by some type of statutory laws. For example, the statutory obligation to ensure a rented property is fit for human habitation is implied into non-statutory common law tenancies by the Homes (Fitness for Human Habitation) Act 2018.
Statutory law differs from the common law because these laws have been passed through a legislative process through Parliament. While the concept of the tenancy was created by the common law, statutory laws have been added over time, meaning that laws affecting your tenancy can be added and changed at any time. The everchanging nature of these laws means that they will always be implied into your tenancy agreement.
Statutory laws are also known as Legislation, Statutes or Acts of Parliament. Statutory laws can be found in common law tenancies and are also used to create and regulate other types of tenancies known as statutory protected tenancies.
Statutory Protected Tenancies
Tenancies that are created and regulated by statutory law are known as statutory protected tenancies. The Assured Shorthold Tenancy (AST) is a type of statutory protected tenancy that is created and regulated by the Housing Act 1988. There are other types of statutory protected tenancies, however the AST is the most common type of tenancy for students and short-term renters. Read our guide: Assured Shorthold Tenancy to find out how the AST provides more security for its tenants.
A statutory protected tenancy like the AST is different to the common law tenancy because it is not only governed by common law but it also has the extra protection of being regulated by statutory law. Therefore, the AST provides more security (of Tenure), giving you more rights as a tenant compared to the standard common law tenancy.
The contractual part of your tenancy relates to your tenancy agreement. As mentioned in the beginning of this guide (jump to section: Landlord and Tenant to refresh your memory), the tenancy agreement alone doesn’t create the tenancy. This is because the tenancy agreement is a personal contract. To create a valid tenancy agreement, your agreement must adhere to contract law principles. Once created, your agreement is covered under common law. 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.
Under contract law, only the parties to the contract (landlord and tenant(s)) are obliged to the terms of the agreement. This means that the obligations and rights under your tenancy agreement are attached to those that are named in the agreement only.
This is different to a tenancy. Under the common law, the tenant has a right in relation to the land, which exists independently of the contract. This means that even after your tenancy agreement ends, the right in land may still continue.