The law and the private rented sector

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Types of occupation agreements

Who is a private landlord?

There is no fixed legal definition of private landlord – but on these pages we mean any landlord who is not:

• a local authority
• in England, a private registered provider (i.e. a housing association registered with the Homes and Communities Agency)
• in Wales, a registered social landlord (i.e. a housing association registered with the Welsh Government).

On this page ‘private landlord’ means any other kind of landlord – including a charity or housing association which has not been registered with the HCA/ Welsh Government. We also use the term landlord to include instances where the owner has let the property on a licence.

Tenancy or licence?

Some landlords provide written agreements that are headed as ‘licence agreements’. But it is not the words in the agreement that ultimately determine the status but the actual arrangements (see next section). Nowadays this distinction has become less important because the majority of residential lettings are assured shorthold tenancies.

What is a tenancy?

Any arrangement where the occupier pays ‘rent’ and has exclusive possession for a ‘term’ is usually a tenancy: Street v Mountford (1985). It is the actual arrangements that determine this, not the wording on the agreement.

‘Rent’ is money paid for the right to occupy, and not for any services provided by the landlord. ‘Exclusive possession’ is the right to control who can enter the property. The ‘term’ is any finite period of time whether it is a specified ‘fixed term’ or a ‘periodic’ term. If the agreement does not specify a date at which it comes to an end, then it is periodic: the length of the period being the period that rent is paid (e.g. weekly, monthly, and so on). A periodic tenancy finishes at the end of each rental period, but automatically re-commences so long as the tenant remains and continues to pay rent. So, a tenancy starting on a Sunday with a weekly rent ends at midnight on Saturday and immediately starts again on the Sunday.

What is a licence?

If no rent is paid or there is no exclusive possession, then the arrangement might be a licence.

The two common circumstances where the agreement might be a licence instead of a tenancy are:

• the occupier pays rent but shares the living space with the owner without any exclusive possession of any part of the dwelling: for example a family member or friend, or a lodger who can be asked to move rooms by the owner; or
• hotel or hostel accommodation where the occupier could be asked to move rooms, or where rooms are only provided on a night-by-night basis.

In England, for the purposes of the ‘right to rent’ provisions (but only for them), the term ‘tenancy’ is used to cover any arrangement where money is paid to occupy premises as a home, so this includes actual tenancies, as well as licences and lodging arrangements.

Types of tenancy and security of tenure

There are various forms of tenure in the private rented sector. The most common, since February 1997, has been an assured shorthold tenancy for a minimum period of six months. The law on different types of tenancy is complex (if you need more information than is provided here you may want to consult the detailed guide to Defending Possession Proceedings).

The Welsh Government has legislated to simplify the different types of tenancy in Wales in the Renting Homes (Wales) Act 2016 which is likely to be introduced in parts from August 2016 onwards.

What is security of tenure?

‘Security of tenure’ means the tenant has the right to continue in occupation until the court has granted a possession order. Among new lettings, assured tenants enjoy the greatest degree of security: the court will only grant possession if it is satisfied that one or more specified factual grounds have been made out and (in most cases) that it is reasonable to grant it. Even then if possession is being sought on the grounds of anti-social behaviour or rent arrears the court will often suspend the order provided the tenant complies with its conditions (such as repaying the arrears by instalments). Higher levels of security can apply if the tenancy started before 28 February 1997 (see Defending Possession Proceedings for more guidance).

Assured shorthold tenants have less security: the landlord merely has to serve a two-month notice requiring possession and apply for an order which the court can only suspend for a maximum period of six weeks (section 21, Housing Act 1988, section 89, Housing Act 1980).

Most other tenancies and licenses have no security at all. The landlord can usually terminate the tenancy by giving at least four weeks’ notice and applying for an order. No grounds for possession are required and the court can only suspend for a maximum of six weeks (section 3, Protection from Eviction Act 1977, section 89, Housing Act 1980). And some, typically where the landlord lives on the premises, are even less secure: once the landlord has ended the agreement they can evict the occupiers without a court order.

But in England only, the tenant/licensee may lose their security if the Home Office notifies the landlord that s/he does not have the right to rent.

Assured shorthold tenancy

Unless the agreement is one type that does not have security, any new residential tenancy is an assured shorthold by default even if the agreement does not say it is. But different rules may apply if your tenancy began before 28 February 1997 – see Assured tenancies and Rent Act regulated tenancies.

An assured shorthold is a type of assured tenancy so all the assured tenancy possession grounds apply. The distinguishing feature of a shorthold tenancy is that the landlord has an absolute right to a possession order after giving two months' notice (section 21, Housing Act 1988) except that:

• an order cannot be made during the first six months of the tenancy or, if longer, until any fixed term has expired;
• in England, a landlord cannot give the two-month notice until at least four months of the tenancy have expired, this would include four months of any fixed-term tenancy granted after an initial fixed-term tenancy has ended;
• in England, the landlord must start possession proceedings within six months of the date when the two-month notice was given;
• in England, for tenancies starting on or after 1 October 2015, the two-month notice must be in the prescribed form;
• the landlord cannot use this procedure if:
  • they have failed to protect the tenant’s deposit as required or failed to serve the tenant with information relating to the protection of the deposit; or
  • if the property is a house in multiple occupation that requires a licence and the landlord does not have one (ss.98 and 215, Housing Act 2004); or
  • in England, for tenancies starting on or after 1 October 2015, the landlord has failed to provide to the tenant copies of an energy performance certificate and gas safety certificate for the property and a copy of the government’s ‘How to rent’ checklist; or
  • in England, for tenancies starting on or after 1 October 2015, the landlord had been served in the six months prior to the notice with an improvement notice or a notice of emergency remedial action by the local housing authority, following a complaint by the tenant.

Most landlords grant a fixed-term tenancy for six months or one year, but it can be longer. If the tenant remains in possession once the fixed term has ended the tenancy automatically becomes a periodic assured shorthold, on the same terms as the fixed-term tenancy (ss.5-6, Housing Act 1988).

Tenancies and licences without security

In England only, if the Home Office notifies the landlord that the tenant/licensee is ‘disqualified’ because of their immigration status the tenant loses their security.

There are some tenancies that do not have statutory security, so that the tenant’s rights are only those contained in the tenancy agreement. In some cases, the landlord has to obtain a possession order before the tenant is required to leave (section 3, Protection from Eviction Act 1977) which can only be suspended for a maximum of six weeks (section 89, Housing Act 1980). The landlord must end the tenancy before they can get the order (see the end of this section). The tenancy types where the landlord needs a possession order that you are most likely to encounter as an adviser are:

• Lettings to students by an educational institution.
• Where the landlord lives in the same flat or building as the tenant but does not share facilities with the tenant (for example, where the tenant occupies one part of the building and the landlord another, but not where they occupy separate self-contained flats in the same building).
• Certain tenancies with a very high or very low rent.

For further details of the last category and a complete list of non-secure tenancies that require a possession order, including the less common categories, see schedule 1, Housing Act 1988.

For any other tenancy or licence without statutory security the landlord does not need a court order to remove the occupier. But the landlord can only remove the occupier once the agreement has come to an end (see end of this section for details), and the landlord is still liable for any criminal offences, such as assault, harassment or criminal damage that they commit. The types of tenancy and licence are known as ‘excluded tenancies and licences’). The most common ones are:

• The dwelling is the landlord’s only or principal home that they have shared throughout the agreement with the occupier.
• The dwelling, or part of it, is the only or principal home of a member of the landlord’s family which they have shared with the occupier throughout the term of the agreement. But this does not apply if both parties occupy separate units in a purpose-built block of flats.
• Permission granted as a temporary expedient to an occupier who entered the property as a trespasser.
• A holiday let.
• A letting where no rent is payable.
• Accommodation provided by the Home Office as part of the asylum support scheme for destitute asylum seekers.
• A licence to occupy a room or rooms in a hostel where the hostel is provided by a council or other specified housing provider.

In all the non-secure tenancies in this section the tenancy must be ended before the landlord can take possession, regardless of whether they also need a court order. A periodic tenancy is ended by serving a minimum notice of four weeks, or the rental period if that is longer (section 5, Protection from Eviction Act 1977). A fixed-term tenancy ends once the term has run its course.

If the landlord has received a notification from the Home office that a tenant or licensee is a ‘disqualified’ person then s/he can end the tenancy.

Night-by-night accommodation

A licence to occupy a hotel room, or hostel accommodation or night shelter let on a nightly basis, is not usually a tenancy or a licence to occupy a ‘dwelling’ because the occupier does not treat the room as their home. Therefore the owner does not usually need a possession order to remove the occupier. However, it will all depend on the facts. For example, in one case the occupier had lived in the hotel for fifteen years (changing rooms three times) and had some limited cooking facilities, and the arrangement was held to be a tenancy (Uratemp Ventures v Collins (2001)).

Assured tenancies and Rent Act regulated tenancies

Assured tenancies are relatively rare in the private sector – because of the rule that the shorthold is the default agreement. Prior to 28 February 1997 the assured tenancy was the default so if the agreement started before then the occupier may be an assured tenant (see the guide Defending Possession Proceedings for advice). Assured tenants enjoy a much greater level of security because the landlord cannot use the two-month notice-only procedure. Most claims for possession brought against assured tenants require the court to consider whether it is reasonable to make an order for possession and whether to suspend the order on terms (such as repayment of rent arrears). However, if there are two months’ rent arrears at the date of service of a notice and at the date of trial, the court has no choice but to make an outright possession order under Ground 8, Schedule 2, Housing Act 1988.

If the agreement started before 15 January 1989, including where the same tenant has been offered a new agreement by the same landlord and the original agreement began before that date, then the occupier may be a Rent Act regulated tenant (for example, if the original sole tenant is granted a new joint tenancy when their new partner comes to live with them).

Rent Act regulated tenants enjoy even greater levels of security than assured tenants and also have the right to have a ‘fair rent’ set by an independent assessor (a ‘rent officer’). If it appears the agreement may be a Rent Act regulated tenancy you should seek specialist housing advice or see the guide Defending Possession Proceedings.

Both assured and Rent Act regulated tenancies are subject to the same rules about loss of security of tenure for ‘disqualified’ people as outlined above for assured shorthold tenants. The new Rent Act ground for possession is 10A, inserted by section 41 of the Immigration Act 2016.

Accommodation provided by employers

Usually, accommodation that has been provided by employers will fall within the definition of an assured shorthold tenancy and the rights of an assured shorthold tenant apply (see above).

Sometimes, accommodation provided by an employer has fewer rights. An employee who occupies property for the purpose of performing their employment duties is a service occupier or licensee. The test is whether it is essential for the employee to live on the premises, or whether they could live elsewhere and still perform their employment duties. It often applies to:

• live-in carers or housekeepers
• caretakers or parks or grounds keepers.

A service occupier loses their right to occupy accommodation when their employment ends. The landlord is still obliged to serve four weeks’ notice to quit and obtain a possession order unless the arrangement falls within the list of excluded agreements (for example, by sharing living arrangements with the employer/landlord - see above).

Agricultural tenancies

Some, but not all, agricultural workers have a special kind of assured or assured shorthold tenancy. These are known as an ‘assured agricultural tenancy’ or ‘assured shorthold agricultural tenancy’: each type has similar rights to its non-agricultural equivalent. But for agricultural tenancies the default agreement is the assured agricultural, and is only a shorthold if the landlord served notice that it would be, before the tenancy began.

The agreement is an assured agricultural (or assured shorthold agricultural) if:

• the tenant lives in a self-contained house; and
• the house is owned by the tenant’s employer, or by someone with whom they have made arrangements to let it to their employees; and
• the tenant is an agricultural worker, i.e. he or she works full-time (minimum 35 hours per week), with at least some of the time spent maintaining crops, livestock, forestry, tractors or other equipment and has been employed in agriculture for at least 91 weeks out of the preceding 104 weeks.

If the arrangement does not fall within this definition, even if the employer has arranged the accommodation, it is not an agricultural tenancy and the usual rules governing agreements (for example, assured shorthold, licence without security and so on) apply. If the agreement falls within the definition above but it began before 15 January 1989 it is a protected agricultural tenancy and the tenant has similar rights to a Rent Act regulated tenant (see above).

There is a useful summary on tenancies for agricultural workers in tied accommodation on the Shelter website.

What are the obligations on private landlords?

Tenancy deposits

Where the landlord has let an assured shorthold tenancy and has charged a deposit they must protect the tenant’s deposit by using one of three approved protection schemes and inform the tenant that they have done so (section 213, Housing Act 2004). The landlord’s notice to the tenant must contain all of the information required by regulations. There are further rules about deposits if you pay it to your landlord’s agent (see the section below on Fees charged by letting agents).

If the landlord fails to protect a deposit, they cannot use the notice-only procedure to get possession (section 215, Housing Act 2004) unless they have repaid the deposit by the date they serve the notice. The tenant can also reclaim an unprotected deposit plus three times its value as compensation (section 214, Housing Act 2004). The tenant can do this even after the tenancy has come to an end and they have left the dwelling.

Deposit protection applies to all assured shorthold tenancies started after on or after 6 April 2007. It also applies to tenancies started before 6 April 2007 that have ended and renewed on or after that date. In those cases, the landlord had up until 23^rd June 2015 to protect the deposit and serve the prescribed information.

Some landlords try to evade deposit protection by taking money at the start of the tenancy for ‘advance rent’ or ‘rent in advance’. If money is not credited as rent the payment still falls within the definition of a ‘deposit’ and should be protected. When money is taken as ‘rent in advance’ advisers should check if it is actually used for rent, or whether it is being held as security against the risk that the tenant might fail to pay the rent.

Notices to the tenant and rent books

The landlord must notify the tenant in writing of their address for service of documents and if they fail to do so, rent is not payable (section 48, Landlord and Tenant Act 1987). However, once the notice is served, the tenant must pay all the arrears accrued for the period before the notice was served. In practice, most tenancy agreements include notice of the landlord’s address.

If rent is paid weekly, the landlord must provide a rent book (section 4, Landlord and Tenant Act 1985).

Rent increases and changes in rent

Landlords and tenants may agree any increase in rent that they choose. The initial rent will be contained in the tenancy agreement. The tenancy agreement may contain a mechanism for rent to be increased, known as a ‘rent review clause’. If it does not, the rent will remain at the same amount throughout the fixed term.

Where a statutory period tenancy arises at the end of a fixed term (see above) the rent stays the same and any rent review clause in the original agreement does not apply unless both parties specifically agree it should. If the landlord wishes to increase the rent, they must serve a notice that complies with section 13, Housing Act 1988. The tenant can refer the proposed rent to the Residential Property Tribunal (England) or Residential Property Tribunal (Wales) for an assessment of the appropriate market rent (section 14, Housing Act 1988).

However, in practice, if a periodic assured shorthold tenant does not agree to the new rent the landlord can obtain possession using the notice-only procedure and re-let the property to a new tenant. However, if the statutory tenancy arises from an assured tenancy that is not a shorthold or from a Rent Act regulated tenancy the tenant is in a much ber position to negotiate.

Landlord registration and licensing for letting and managing property in Wales (Rent Smart Wales)

Any landlord who lets a property in Wales on an assured or assured shorthold tenancy must register each one with the national authority Rent Smart Wales: section 4, Housing (Wales) Act 2014. The registration lasts five years after which landlords must reapply.

Any landlord who markets or offers a property for rent or who manages the tenancy (e.g. collects rent, arranges repairs etc.) once it is let must also have a license to manage from Rent Smart Wales. The landlord can arrange for an agent to manage the tenancy on their behalf, but must appoint a local managing agent if s/he lives more than 200 miles away. If the tenancy is managed by an agent, the agent must have a licence: sections 6-13, Housing (Wales) Act 2014. To be granted a licence the landlord/agent must show that they meet all conditions for it:

• s/he must have completed suitable training; and
• s/he must have signed a declaration that they are a ‘fit and proper person’.

If s/he is applying for licence as an agent s/he must also:

• upload to the Rent Smart Wales website a list of all the properties s/he manages; and
• provide evidence that s/he meets the business safeguards (pdf) (i.e. has client money protection, professional indemnity insurance and is a member of a property redress scheme).

Section 22 of the Act makes it a condition that any person issued with a licence must comply with the code of practice (pdf). Rent Smart Wales has issued a code of practice checklist for landlords (pdf) and further guidance on licence types and conditions (pdf).

Fees charged by letting agents, etc.

In England, from 1 June 2019 (or in Wales, from 1 September 2019), the only payments that a landlord or letting agent can charge a tenant for a new or replacement contract (apart from rent) are:

• a refundable tenancy deposit capped at no more than five weeks’ rent
• a refundable holding deposit (to reserve a property) capped at no more than one week’s rent
• payments associated with early termination of the tenancy, when requested by the tenant
• payments in respect of utilities, communication services, TV licence and council tax
• a default fee for late payment of rent and replacement of a lost key/security device giving access to the housing, where required under a tenancy agreement.

In England, the law is in the Tenant Fees Act 2019; MHCLG have produced guidance about the Act for both landlords and tenants.

In Wales, the law is in the Renting Homes (Fees etc.) (Wales) Act 2019 and SI 2019 No. 1151 (which applies the same law to renewals of assured shorthold tenancies). From 28 February 2020, before the landlord/agent charges a holding deposit, s/he must provide the tenant with a notice that contains certain prescribed information .

In England, from 1 April 2019, or in Wales from 23 November 2016, the letting agent must hold any deposit paid by the tenant in a separate client account – this is so that if s/he ceases trading the tenant’s rent payments are fully protected. In England the law is enforced by the local authority and is in Part 5 of the Housing and Planning Act 2016 and the client money protection scheme regulations. In Wales, the law is enforced by Rent Smart Wales as part of the managing agent’s licence conditions.

Obligations about the condition of the property

Provision of alarms

In England, a private landlord renting out property must install a smoke alarm in every floor and a carbon monoxide alarm in any room which contains a solid fuel heater (such as a coal fire or wood-burning stove). They must also check at the start of each new tenancy that these alarms are in proper working order. If a landlord is in breach of this requirement, a complaint can be made to the local authority who can serve a remedial notice on the landlord. In Wales a similar law applies to all new contracts starting on or after 1 December 2022 and will apply to all contracts (including those started before 1 December 2022) from 1 December 2023. General guidance about the regulations can be found here for England and here for Wales.

Fitness for habitation: tenants’ contractual rights

In England, from 20 March 2020 there is an implied term in every agreement (whether it started before 20 March 2020 or not) that the landlord will ensure that the dwelling is ‘fit for human habitation’ throughout the life of letting. The law assumes the term is part of every tenancy agreement that is less than seven years.

The main features of this new law are:

• the term is part of the contract whether it has been included in the written agreement or not (and even if the agreement includes a term stating that it does not apply);
• it can help the tenant even where the problem is not disrepair (i.e. where something is broken), for example, if the property is unfit due to a design defect (such as poorly designed drains, or poor insulation resulting in condensation mould growth)
• if the landlord fails to deal with the problem after being made aware of it, the tenant has the right to sue for damages and/or seek an injunction (previously their only option would be to ask the local authority to take enforcement action).

The law is in the Homes (Fitness for Habitation) Act 2018 (which amends the Landlord and Tenant Act 1985). The UK government has produced a Guide to the Act for landlords and tenants. A comprehensive account can be found in the guide Housing Conditions: Tenants Rights.

The equivalent law in Wales is in Renting Homes (Wales) Act 2016, section 91 - it applies to all contracts starting on or after 1 December 2022, and to every contract (including those started before 1 December 2022) from 1 December 2023. The law works in a similar way to England and the Welsh government has published guidance for landlords and for tenants.

Disrepair: tenants contractual rights

The starting point for dealing with disrepair is always the tenancy agreement. The landlord is obliged to comply with any conditions in the agreement to repair or maintain the property. If the landlord is not complying, after serving notice the tenant can apply for an order requiring the landlord to remedy the breach and for damages.

If there are no express terms in the agreement the next stage is to establish whether there are any implied terms and if so enforce them. Any tenancy with a term that is less than seven years has the following implied terms:

• to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);
• to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity); and
• to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water including those in any common parts (ss.11(1), (1A), Landlord and Tenant Act 1985).

A comprehensive account of tenants’ contractual rights to remedy disrepair can be found in the guide Housing Conditions: Tenants Rights.

Using the s.11 repairing obligation

When using this implied term the following points should be noted:

• The term is implied into all tenancies in England and Wales of less than seven years – in practice nearly all of them because it includes any with a weekly, monthly or annual periodic term.
• The obligation is not to keep everything in repair, only to the structure, exterior and installations specified.
• The ‘exterior’ means: external walls, roofs, foundations, windows, doors and gutters.
• The ‘structure’ is not the whole dwelling but more than just load-bearing elements. It generally includes internal walls, plaster (Grand v Gill (2011)) but not internal doors.
• There must be some damage to the structure, exterior or installations that requires remedying.
• The landlord is not obliged to put in installations which were not present at the start of the tenancy (for example to install central heating where there was none) but if the original installations stop working, then the landlord will be in breach.
• The obligation does not extend to design defects, such as cold external walls that result in condensation forming inside.
• Using s.11 to tackle dampness is complicated. In general, rising dampness which can damage foundations, floors, walls, etc. and penetrative dampness through doors, windows or defective walls or roofs falls within s.11; condensation arising from a design defect or how the property is used does not, unless the effect is so significant that it damages the structure (for example by saturating the plaster), rather than superficial damage that can be merely wiped off.
• The landlord is not in breach of the obligation until they have been given notice of the defect (which can be in the form a general complaint or awareness through their own inspection) and they have failed to remedy it within a reasonable period. What is reasonable depends on the item in disrepair.
• The requirement to give notice does not apply to defects to the common parts because the landlord has the right to enter these and inspect without the tenant’s permission.

Where a landlord has failed to respond to notice of the defect and/or remedy the disrepair, the tenant can apply for an order of specific performance that requires the landlord to take action. If there is an urgent risk to the health or safety of the occupiers, the tenant can make an accelerated application (Parker v Camden LBC [1986] Ch 162, CA). The tenant’s claim can also include damages for: distress and inconvenience (general damages), financial loss (special damages) and personal injury. Before a claim can be brought, the tenant should give the landlord written notice that complies with the housing disrepair pre-action protocol.

Legal aid is available where the defect is so severe that there is a serious risk to the health or safety of the tenant or their family (para. 35, Schedule 1, Legal Aid Sentencing and Punishment of Offenders Act 2012). Assessing damages is complex and involves comparison with cases with similar facts, and then cross-checking against the rent paid on the property. In general, the level of damages should be less than the rent.

If the defect is such that the state of the property is prejudicial to health or is a nuisance the tenant could bring a private prosecution: ss.79-82, Environmental Protection Act 1990. The tenant should be able to get advice on this from a solicitor using legal aid if the disrepair is a serious risk to health, and may then be able to get a case financed via a Damages Based Agreement, where costs may come out of any damages awarded.

Remedies by the local authority

The local authority has powers to take action against landlords for bad housing conditions. A complaint can be made to the enforcement team. Actions that local authority enforcement officers can take against a landlord include:

• Service of an abatement notice and subsequent prosecution if the property is in such a state as to be prejudicial to health or a nuisance: ss.79-82, Environmental Protection Act 1990.
• Inspection to identify any ‘category one’ or ‘category two’ hazards in the property under the Housing Health and Safety Rating System (pdf). If there are, the authority has a variety of powers to take enforcement action such as a hazard awareness notice or improvement notice powers under Parts 1-4, Housing Act 2004 and specifically ss.28-29.
• If the property has a category one or two hazard the authority can issue a prohibition order which can stop the landlord from letting it (ss.20-21, Housing Act 2004).
• Service of a remedial notice requiring the landlord to install smoke alarms and/or carbon monoxide alarms (Regulation 5 Smoke and Carbon Monoxide Alarm (England) Regulations).
• If a category one hazard exists and the dwelling is not a flat the authority could issue a demolition order (section 265, Housing Act 1985).
• If the authority makes a prohibition order or demolition order under either of the two provisions above they have a duty to rehouse the tenant, and if they have lived there for at least a year also to pay compensation: a ‘home loss payment’ (ss.29(1),(b),(7) and 39(1)(b) Land Compensation Act 1973). The duty to rehouse does not count as a housing allocation or homelessness assistance so there are no restrictions as to immigration status.
• Declare a clearance area if all the dwellings in the vicinity have a category one hazard (section 47, Housing Act 2004).
• If the dwelling has a category one hazard that poses an immediate risk to the occupants the authority can make an emergency remedial order (section 40, Housing Act 2004) or an emergency prohibition order (section 43, Housing Act 2004).

Some of those notices or orders can then be suspended, giving the landlord an opportunity to remedy the hazards.

Overcrowding

The local housing authority can assess the accommodation as overcrowded and as containing category one or two hazards under the Housing Act 2004 and take action accordingly (see above) – but a tenant cannot take action against their landlord if their home is overcrowded.

A property is statutorily overcrowded if either the ‘room standard’ or the ‘space standard’ is breached:

• the ‘room standard’ is breached if two people of opposite sexes, who are not married or cohabiting, must share a room but:
  • children under ten are not counted, and
  • a living room counts as a bedroom (section 325, Housing Act 1985);
• the ‘space standard’ is breached if the number of occupants sleeping in the dwelling exceeds the ‘permitted number’ allowed (section 326, Housing Act 1985) – see the legislation itself for tables which set out the calculation.

A property could contain category one or two hazards due to overcrowding even if it is not statutorily overcrowded. Complaint should be made to the Environmental Health Department of the local council.

House in multiple occupation (HMO)

If a landlord lets a house in multiple occupation (HMO) that falls within a category under either the national scheme or a local scheme they must obtain a licence from the local authority under Part 2, Housing Act 2004: further details can be found in this government guide. If the landlord fails to obtain a licence where one is required:

• they commit a criminal offence and can be fined up to £20,000 (section 72, Housing Act 2004)
• they cannot rely on the notice-only procedure to get possession from any shorthold tenant living in the property (section 75, Housing Act 2004)
• the current or former occupiers can apply to a Residential Property Tribunal for repayment of up to 12 months rent (and if the rent was paid by HB the local authority can claim repayment) (ss.73-75, Housing Act 2004).

Unless it falls within one of the exemptions set out below the landlord will require a license for an HMO from the local authority if:

• it is three or more storeys and is occupied by five or more people forming more than one household (The English Prescribed Descriptions Order/The Welsh Prescribed Descriptions Order) (the national scheme); or
• it is in an area designated by the local authority as subject to HMO licensing (ss.55-56, Housing Act 2004) (a local scheme).

A property is an HMO (as defined by section 254, Housing Act 2004) if it is:

• a building or flat in which more than one household shares a basic amenity (toilet, personal washing facilities or cooking facilities), or a basic amenity is lacking; or
• a converted building that does not entirely comprise self-contained flats and is occupied by more than one household; or
• a building comprised entirely of converted self-contained flats where the standard of conversion does not meet minimum Building Regulation standards and more than one-third of the flats are occupied under tenancies of 21 years or less (section 257, Housing Act 2004).

‘Household’ is either a single person, or members of the same family who are living together, who may be married, cohabitating or related to each other (section 258, Housing Act 2004). Friends sharing a property would not constitute a ‘household’. The ‘household’ must pay rent and be occupying the property as its only or main residence.

The following types of property let by a private landlord are not an HMO even if they fall within the above definition:

• the landlord is resident, and no more than two other people live with them as a separate household
• the property is occupied by no more than two people
• the building is occupied by students or a religious community.

(See Schedule 14, Housing Act 2004 for the complete list of exemptions.)

Harassment and illegal eviction

Criminal offences

It is a criminal offence for anyone to deprive an occupier of his or her home or any part of it, unless that person can show he or she believed, and had reasonable cause to believe that the occupier had ceased to live there (section 1(1), Protection from Eviction Act 1977).

It is also a criminal offence for anyone to do anything that is likely to interfere with the peace or comfort of the occupier and members of their household, if that is done with the intent to cause the occupier to leave or to discourage them from pursuing any legitimate rights or remedies in respect of their home. This includes acts such as interfering with services of facilities that the occupier reasonably requires to continue living there e.g. the supply of water or fuel (section 1(3) and (3A), Protection from Eviction Act 1977).

In general, these offences are committed where a landlord tries to evict or harass a tenant in order to make them leave, without going to the court for a possession order. The offence can be committed by the landlord or anyone acting as their agent. The perpetrator has a defence if he or she can show that they had reasonable grounds for doing the acts or for interfering with the services.

Other criminal offences that could be committed in the course of an eviction include:

• Using or threatening violence to secure entry to premises, where the person conducting it knows that there is someone in the home who is opposed to their entry (section 6, Criminal Law Act 1977).
• Assault: common assault, actual bodily harm, grievous bodily harm or other offences against the person.
• Criminal damage to the occupier’s possessions.
• Harassment, defined as a course of conduct on at least two occasions, which might put a person in fear of violence, alarm them or cause distress (Protection from Harassment Act 1997).

Civil remedies

If an occupier is unlawfully deprived of his or her home by their landlord/landlord’s agent the occupier has the right to apply to the court for an injunction to force the landlord to re-admit them and for an award of damages.

Generally, this kind of action is taken as an enforcement of contract because the common law implies a term into all tenancy or licence agreements that the occupier has the right to ‘quiet enjoyment’ of the premises: in other words, will have the right to live in the property peacefully. Except where the contract has been ended, the implied term is broken if the occupier is evicted or harassed. There is a useful guide to Quiet Enjoyment and this is also an issue where the local authority Environmental Health Department should be able to help.

If the contract has been ended and the landlord tries to remove the occupier without obtaining a possession order where one is required (see above), the occupier has a separate course of action for an injunction and damages for breach of the statutory tort of ‘prohibition of eviction without due process of law’ (section 3(1), Protection from Eviction Act 1977).

Legal aid, subject to a means and merits test, is available for bringing a claim for an injunction and/or damages where there has been an illegal eviction (para. 33, Schedule 1, Legal Aid Sentencing and Punishment of Offenders Act 2012).

In any case where the occupier is seeking reinstatement the landlord should be written to urgently, requesting agreement to reinstatement within a specified, short timescale. If the landlord refuses, or does not respond, the occupier can apply to the court for an urgent injunction without any further notice to the landlord. Generally, the court will grant the order unless the judge has reason to believe that the property is re-let and is occupied by an innocent third party, i.e. someone who had nothing to do with the eviction. If the landlord is present at court the injunction takes effect once it has been served on them. If the landlord fails to comply with the reinstatement order they could be charged with contempt of court.

The occupier is entitled to pursue a claim for damages whether or not they are reinstated. Damages might be quite substantial, particularly where the tenancy provided long-term security (such as an assured tenancy) (see ss.27-28, Housing Act 1988).