While protected tenants have the same rights as other private tenants, they also have a number of additional rights. These are a right to succession and greater protection from possession action.
Basic rights of private tenants
All tenants have a range of basic rights. These rights cannot be taken away by any terms contained in the tenancy agreement between you and the tenant.
The basic rights of private tenants are:
- the right to a rent book
- the right to at least four week’s notice to quit
- the right to due process of law
- the right to claim housing benefit
- freedom from harassment and illegal eviction.
This chart shows the rights that apply to different private tenancies.
Right to succession
On the death of a protected tenant the tenancy can pass to a family member who was living in the property at the time of the existing tenant’s death. In most cases, this will be a spouse or child of the original protected tenant.
To qualify for succession, the new tenant must be a family member who was living in the property at the time of the protected tenant’s death. The new tenant must also have been living in the property for a period of at least 6 months leading up to the death of the protected tenant.
If, since April 2007 a protected tenancy has been passed to a family member, the tenancy becomes a statutory tenancy. This is broadly similar to a protected tenancy and the tenant will have the same security of tenure. However, a statutory tenant has no right to succession and on the death of a statutory tenant possession of the property will pass to the landlord. If the property is still occupied on the death of the statutory tenant, you will have to regain possession of the property in the normal way, by serving a Notice to Quit and obtaining a court order.
Protection from possession action
It is relatively simple for a landlord to begin possession proceedings against a normal private tenant. You must serve a Notice to Quit and obtain a court order for possession if the tenant does not leave when the notice expires. However, it is much more difficult to evict a protected tenant.
To obtain an order for possession of a protected tenancy, you must be able to satisfy one of the eight mandatory grounds for possession or one of the ten discretionary grounds for possession. If you file for possession under one of the discretionary grounds the court must be satisfied that it is reasonable to issue a possession order.
Mandatory grounds for possession
If you can prove that any of the following circumstances apply, the court must grant the order for possession:
- The property was originally your home and you gave the tenant notice before the tenancy was granted that you intended returning to live there in the future.
- You were a member of the armed forces at the time the tenancy was granted and you gave the tenant notice that you may in the future seek possession of the property in order to live there.
- Before granting the tenancy you gave the tenant notice that you intended to seek possession of the property on retirement (you must be retired from employment to seek possession under this ground).
- The property was originally intended for occupation by a minister of religion or a missionary and is now required for this purpose.
- The property was let under a protected shorthold tenancy which has now expired.
- In addition, if it can be shown that the property was originally an agricultural concern the tenancy may be governed by the Agricultural Act 1967. If this is the case, seek advice from a solicitor who may be able to show that you meet one of the mandatory grounds for possession.
Discretionary grounds for possession
You can try to regain possession of a property under one of the discretionary grounds for possession. The court will only grant possession under one of these grounds if it believes possession is reasonable under the circumstances. It may help your case if you can source alternative, affordable accommodation for your tenants.
- The tenant is in arrears or in breach of the tenancy agreement.
- The tenant has caused nuisance or annoyance to the neighbours or has been convicted of using the premises for immoral or illegal purposes.
- The tenant has deliberately, or through neglect, damaged the condition or structure of the property.
- The tenant has deliberately, or through neglect, damaged furniture provided as part of the letting.
- You have arranged for the sale or re-letting of the property because the tenant informed you that he intended to leave.
- The tenant has sublet all of the property without your permission.
- The tenant was your employee and the property is now required for a new employee.
- You purchased the property before April 2007 and now need the property for yourself or for members of your family to live in.
- The tenant has sublet the property and is charging an excessive rent.
- The property is on agricultural land which you wish to sell.
Repairs in protected tenancies
You will always be responsible for all the statutory repairing obligations, such as gas installations, electrical installations and ensuring that furnishings provided adhere to safety legislation.
If a regulated rent certificate has never been issued by the district council and there is no tenancy agreement or no mention of repairing obligations in the tenancy agreement, you and your tenant can make your own arrangements regarding repairing responsibilities, outside of these statutory obligations.
However, if a regulated rent certificate was issued by the local council under the Rent Order 1978 default repairing obligations apply to the tenancy.
In this instance, you will be responsible for:
- the exterior, structure, pipework and guttering and external paintwork of the building
- installations for the supply and use of gas, water, electricity, sanitation, including sinks, baths and toilets
- installations for heating and hot water
- any appliances, fixtures or fittings that were provided as part of the tenancy.
The tenant will be responsible for:
- repairing any damage caused by the tenant's actions or neglect
- keeping the interiors in reasonable decorative order
- taking good care of the dwelling house.
The tenant should also get your permission before carrying out alterations to the property and you should not unreasonably refuse this permission.