The quickest way to find out if a property has a protected tenancy is to check the rent register.
This register contains the details of all known protected tenancies.
But, it is possible for a protected tenancy to exist without being on this register.
The landlord will have to prove a tenancy is not protected if
- it is not already on the register, but
- the indicators suggest that it might be a protected tenancy.
What are the indicators of a protected tenancy?
Your property may have a protected tenancy if
- the current tenancy began before 1 April 2007
- the property was built or converted for letting before 1956,
- the property was first rented out before 1978
- a tenant was living in the property in October 1978.
The tenancy will not be protected if:
- the net annual value, (NAV), of the property is over £140 and you have obtained vacant possession since October 1978
- the property was owned by the Crown, Government or the Housing Executive in October 1978
- the tenancy was let as a condition of someone's job in October 1978, for example a resident caretaker
- the property was let with a large amount of land before 1978.
The burden of proof is on the landlord. This means you need to provide evidence to show that the tenancy is not protected.
Buying a property with a sitting tenant
Be careful if you decide to buy a property with a sitting tenant. You need to check if the tenancy is protected. If you buy a protected tenancy, you
- cannot charge more rent than the amount set by the rent officer for the property
- may only be able to receive £1 per week in housing benefit towards the rent
- may find it difficult to evict the tenant.
Your solicitor carries out searches when you are buying a property. These searches should include checking if the sitting tenant is a protected tenant.