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Question

Types of Tenancies (England)

what type of tenancy

5 Jul 2017 | 1 comment

If someone is occupation of a property and they do not pay rent for example an ex partner who refuses to leave, i know a notice to quit is required, but what is the nature of the tenancy, i know its not assured shorthold, so is a common law one? a contractual one?

Answer

1 Comment

  1. guildy

    The answer is never simple because it’s very specific to each individual case.

    However, in order for there to be a tenancy there must be an “intention to create legal relations”. Without that, there can be no tenancy and as such in many cases like you describe they would simply be a licensee. For example, if you employed a decorator whilst away on holiday, although they have access to the property with your keys, there is no intention to create a legal relationship of giving the decorator exclusive possession to occupy as their home.

    Compare with for example a conversation upon the partner leaving that says along the lines “you may stay here until you’ve found somewhere as long as you pay towards the mortgage” – then, there is a tenancy because they have been given exclusive possession and permission to occupy. Which tenancy would depend on the circumstances. If it were their only or principle home, it will be an AST. If they had another home too (that was their main home) but stayed in the property some times, then it would be a contractual tenancy (sometimes called a common-law tenancy).

    Where no rent is payable (nor other consideration such as paying some or all of the mortgage), it would be an excluded licence in most cases (or an excluded tenancy if a tenancy was found to be in place). This means no notice to quit is required (but reasonable notice is required) and in some cases no court order is required. A court order is recommended even where not necessarily required because it’s a criminal offence to remove somebody objecting to their removal.

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