In the UK, several types of tenancies outline the relationship between landlords and tenants. The most common types include:
Assured Shorthold Tenancies (ASTs)
Assured Tenancies
Regulated Tenancies
Common Law Tenancies
In this article, we’ll focus on common law tenancies, including the conditions under which a common law tenancy is created and how it differs from other tenancy types.
We’ll also explore the rights and responsibilities of both tenants and landlords under common law tenancy and the legal framework governing common law tenancy.
Table of Contents
- What is a common law tenancy?
- When does a common law tenancy apply?
- What are the legal differences between common law tenancies and other tenancy types?
- What are the rights and responsibilities of tenants under common law tenancies?
- What are the rights and responsibilities of landlords under common law tenancies?
- What are the key components of a common law tenancy agreement?
- How do you end a common law tenancy?
- Can common law tenancies be verbal?
- Are deposits required for common law tenancies?
- Can you evict a common law tenant?
- Get expert advice on common law tenancy agreements from Lawhive
What is a common law tenancy?
A common law tenancy is a type of rental agreement in the UK that exists outside the statutory frameworks established by various housing and rent acts.
It is essentially a tenancy agreement that is governed by common law rather than by specific housing legislation.
These tenancies are more like commercial leases and typically occur in special circumstances where the property or the nature of the tenancy does not fall under the more common statutory tenancy types.
Unlike assured shorthold tenancies (ASTs) or regulated tenancies, common law tenancies do not enjoy the same statutory protections and regulations.
When does a common law tenancy apply?
Common law tenancies usually apply in the following situations:
High-rent agreements where the annual rent exceeds £100,00;
When the tenant is a company rather than an individual
When the landlord lives in the same property and rents out part of it.
What are the legal differences between common law tenancies and other tenancy types?
Common law tenancies offer more flexibility but come with fewer statutory protections, while ASTs, assured tenancies, and regulated tenancies provide varying levels of security and regulation.
Here's a breakdown:
Common Law Tenancies | ASTs and Assured Tenancies | Regulated Tenancies | |
Rent and Rent Increases | Governed by the terms of the agreement | Must follow statutory guidelines, including specific notice periods and sometimes the tenant’s consent | Rent is controlled and increases are heavily regulated. |
Security of Tenure | Eviction terms are set by the contract, but a court order is still needed under the Protection from Eviction Act 1977. | Tenants can be evicted after the fixed term ends with appropriate notice (ASTs) or tenants can only be evicted on specific legal grounds (Assured Tenancies) | Difficult for landlords to evict tenants. |
Legal Protections | Disputes are often resolved through common law principles | Significant statutory protections, including deposit protection schemes and minimum notice periods for eviction. | Strict rent controls and strong eviction defences. |
What are the rights and responsibilities of tenants under common law tenancies?
If you’re renting under a common law tenancy in the UK, you have the following rights:
Right to possession
You have the right to exclusive possession of the property during your tenancy period. This means you can use the property without interference from the landlord, as long as you follow the terms of the tenancy agreement.
Right to privacy
You have the right to privacy in your home. The landlord must give you reasonable notice, usually 24 hours, if they need to enter the property for inspection or repairs unless it’s an emergency.
Right to a habitable home
Your landlord must ensure the property is safe and habitable. This includes maintaining the structure of the building, ensuring the plumbing and heating are in good working order, and making necessary repairs.
Protection against eviction
You have protection against eviction without a court order.
You also have certain responsibilities, including:
Paying rent on time as specified in the tenancy agreement;
Taking good care of the property and ensuring it is kept in a reasonable condition;
Following all the terms set out in your tenancy agreement, like not subletting the property, keeping pets, or using the property for business purposes without permission;
Allowing the landlord to access the property for necessary repairs and inspections, provided they give reasonable notice;
Informing your landlord of any repairs that need to be done.
What are the rights and responsibilities of landlords under common law tenancies?
If you’re a landlord with a common law tenancy, you have the right to:
Collect rent as specified in the tenancy agreement;
Access the property for necessary repairs and inspections provided you give your tenant reasonable notice (unless it’s an emergency);
Terminate the tenancy following procedures and notice periods outlined in the tenancy agreement;
Recover possession of the property at the end of the tenancy without serving a notice to quit.
You also have certain responsibilities, including:
Keeping the property in good repair, including the structure of the building, plumbing, heating, and electrical systems;
Ensuring the property meets all health and safety standards;
Respecting your tenant’s right to privacy;
Handling deposits following terms set out in the tenancy agreement;
Following specific procedures for ending the tenancy.
What are the key components of a common law tenancy agreement?
A common law tenancy agreement should include:
Full names and addresses of both the landlord and the tenant;
A detailed description of the rental property, including the address and specific areas included in the tenancy;
The start date and duration of the tenancy;
Whether the tenancy will continue on a rolling basis after the initial term;
The amount of rent to be paid, how often it is to be paid, and the due date;
The method of rent payment;
The amount of the security deposit, conditions for its use and the circumstances under which it will be returned to the tenant;
Who is responsible for paying utilities and other bills;
Landlord and tenant’s responsibilities for maintaining and repairing the property;
How the property is to be used and restrictions on certain activities;
The notice period required for either party to end the tenancy;
Conditions under which the landlord can end the tenancy;
How disputes should be resolved.
How do you end a common law tenancy?
Common law tenancies typically require notice in line with the rent payment period (e.g. one month’s notice if rent is paid monthly) to end them.
As such, both landlords and tenants must serve a written notice that complies with the notice period specified in the agreement.
Alternatively, both parties can agree to end the tenancy early.
Can common law tenancies be verbal?
Under UK law, a tenancy agreement can be made verbally as long as it includes essential terms such as the rent amount, duration of the tenancy, and the rights and responsibilities of both the landlord and the tenant.
This is true for common law tenancies as well as other types of tenancies.
The main drawback of this, however, is the lack of physical evidence in the event of a dispute. It can be challenging to prove the terms of the agreement without written documentation.
As such, it’s highly recommended that you have a written agreement in place.
Are deposits required for common law tenancies?
Deposits are not legally required for common law tenancies in the same way they are for other types of tenancies, like assured shorthold tenancies.
There is also no specific legislation that mandates the use of deposit protection schemes for common law tenancies.
That being said, landlords often take a deposit to protect against potential damage to the property or unpaid rent. The terms regarding the deposit in common law tenancies should be clearly stated in the tenancy agreement. This includes the deposit amount, conditions for its return, and any deductions that may be made.
Can you evict a common law tenant?
You can evict a common law tenant but the process is different from that used for tenants under statutory protections like assured shorthold tenancies.
Since common law tenancies fall outside the statutory regulations of the Housing Acts, the eviction process is more flexible but must still comply with basic legal principles and protections.
Furthermore, you still can’t forcibly evict a tenant without a court order, as this would breach the Protection from Eviction Act 1977.
While not always legally required, it’s good practice to serve a notice to quit to give the tenant clear information about the intention to end the tenancy. The notice period should be reasonable and in line with what’s in the tenancy agreement.
If the tenant refuses to leave after the notice period, you will need to get a court order to evict them legally. This involves applying for a possession order.
Get expert advice on common law tenancy agreements from Lawhive
As we’ve seen, common law tenancy agreements offer flexibility but require clear terms to avoid disputes, particularly as they fall outside the statutory protections of other tenancy types.
If you’re a landlord or tenant involved in a common law tenancy, having a well-drafted agreement is vital to prevent misunderstandings and legal issues down the line. As such, always consider seeking professional advice to tailor the agreement to your specific needs.
Contact us today for a free case evaluation and quote for the services of a specialist landlord and tenant lawyer.