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Contractual or Common Law Tenancies

5.12 Contractual or Common Law Tenancies

Provided the proper procedure is followed, evicting contractual/common
law tenants should not be difficult. However, as the rules are different for
this type of landlord from others mentioned here, legal advice may need to
be sought.

Contractual tenancies include:

• lets of residential properties to companies (but not business
premises);

• lettings at a rent of over £25,000; or

• lettings by some resident landlords.

Holiday lets, and university lettings to students also fall in this category.
Note that some resident landlords may set up contractual tenancies and
other will only give a licence to the occupier. Although these occupiers are
“excluded occupiers” for the purposes of the Protection from Eviction Act
1977, and no court order is required to evict them, the Criminal Law Act
1977 still applies. This states that nobody should use or threaten violence
to gain entry to someone’s room if there is someone present and who is
opposed to the forced entry – they risk criminal proceedings if they do.

If the Common Law Tenant is in Arrears of Rent

It is possible to bring proceedings for possession on the basis of non-
payment of rent and in this event there is no need to serve any specific
form of notice on the tenant first (although it is advisable to warn them
that possession proceedings are imminent if they do not pay). However,                 the judge has unlimited powers to suspend or stay the order as he thinks
fit. Many larger student-type HMOs in the private rented sector are likely
to be exempt from Housing Act 1988 status due to the annual rental
income (assuming the letting is all on a single contract it is the total rent
payable under the contract that counts not the individual contributions).
The terms of the contract should specify when and how the tenancy can be
terminated.

If the Common Law Tenant is not in Arrears of Rent

It is not normally possible to evict a tenant during the fixed term unless
there is a break clause in the tenancy agreement or the tenant breaches
the terms of that tenancy agreement and the agreement states it can be
terminated for breach. It is technically possible to seek possession for
breaches of the tenancy agreement other than non-payment of rent, but
this is not often successful. Usually, a notice under section 146 of the Law
of Property Act 1925 is required, giving the tenant notice that they are in
breach of the tenancy conditions and an opportunity to put things right,
if possible. Legal advice should be sought from a solicitor experienced in
eviction work to do this properly.

Contractual/common law tenancies do not have the same ‘statutory
periodic’ run-on that the Housing Act 1988 assured and assured shorthold
tenancies do. At the end of a fixed term, the landlord will be entitled
to apply for a possession order. If possession is not required, a specific
renewal should be agreed. If it is a periodic tenancy the landlord can end
the tenancy at any time by serving a ‘Notice to Quit’ (a section 21 notice
is often referred to as a notice to quit but this is not correct and not the
document referred to here). This must give a notice period of no less than
four weeks (but longer if the rent is payable monthly or more). The notice
must expire on the last day or the first day of a period of the tenancy and
must be in writing and must contain prescribed information. Once this has
expired, if the tenant has not vacated, the landlord can apply to the court
for an order for possession which they are entitled to as of right. A landlord
does not need to give any reason for asking for possession.