Whose House Is It Anyway?

4 August 2017 | King’s Legal Clinic

Choosing the right house to live in while at university can be a stressful process. Thinking about who you want to live with as well as the best location to live in are big decisions that shouldn’t be taken lightly. Just as important is ensuring you understand what rights you have when you do start looking into renting private housing.

I recently attended the University of London Housing Services (ULHS) Essential Housing Law training course. The course gave a very informative overview of key rights you have when renting private housing. Below are some important things to bear in mind when looking to rent privately.

Whose house is it anyway?

Before you sign a contract to rent housing, you should make sure you actually know the type of letting agreement you are potentially signing up to.

Licence vs Tenancies

A licence is a less formal agreement granting occupation of a property in comparison to tenancies. You occupy a property as a licensee which means you have permission from the owner to use the property as accommodation. However, you have fewer legal rights than a tenant would have. Living in a house with the house owner like a family member would be a typical example.

There are different types of tenancy agreements. The two key ones to be aware of are a bare contractual tenancy and an assured shorthold tenancy (AST). Where you have a property that has been converted into separate flats with the landlord and their tenant both residing in flats within that property, this may be a bare contractual tenancy. Often, a bare contractual tenancy is used when it is not legally possible for a property to be let as an AST.

The case of Street v Mountford [1985] UKHL 4 set out the distinction between a licence and a tenancy. What matters is not the label given to an agreement but the reality of how the arrangement works in practice. It was determined that a letting agreement cannot be deemed a licence if:

* The property is being rented for a fixed or limited period (i.e. for a term);

* It has been agreed that rent is payable for that term; and

* The person renting has exclusive possession of the property during that term.

So in essence, if it looks like a duck and quacks like a duck then it’s likely to be a duck – despite any protestations to the contrary.

The ‘Double’ Agent

If you decide to rent a property through an agent, you should understand what their role is. The agent is acting on behalf of the landlord when negotiating the terms of a tenancy. However, for example, by taking a holding deposit, the agent is acting for themselves. You should understand that when an agent is acting on behalf of a landlord, any potential claims you raise about your housing will be against the landlord rather than the agent.

Nevertheless, claims relating to the following can be brought directly against the agent:

• Where you allege that the agent received but failed to protect your deposit in a deposit protection scheme.
• Where you allege that the agent made a statement of fact which persuaded you to enter into your tenancy contract but you later discovered that fact to be false (known as misrepresentation).
• Where the agent has made breaches of consumer law as set out under the Consumer Rights Act 2015.

A minor infringement that may result in some form of penalty could be the failure of an agent to provide the prescribed information to a tenant when placing the deposit in a protection scheme. Provision of the prescribed information is just as important as protecting the deposit itself and includes things like giving the tenant the leaflet material of the scheme protecting their deposit; merely directing the tenant to the scheme’s website to look for the leaflet material themselves will not be enough.

Disrepair…don’t despair!

Disrepair only occurs when there has been a deterioration in the condition of a part or parts of the accommodation you are renting during your tenancy. Where damage existed prior to your tenancy and remains in the same state throughout, this will not constitute disrepair – you should probably make the landlord aware of this and see if it can be repaired before you sign sign a contract and at the very least, before you move in.

Your tenancy agreement will often state what repairs you as a tenant are responsible for should any damage to your accommodation occur during your tenancy. So make sure you aware from the very beginning about repairs you are responsible for as set out in your contract.

There are certain repairs that your landlord is legally obliged to undertaken and cannot be delegated to anyone else. Section 11 of the Landlord and Tenant Act 1985 (LTA 1985) makes it clear that a landlord has to repair any damage to the property’s structure or exterior. They also have to ensure installations in the property are in repair and proper working order e.g. anything supplying water, gas, electricity etc.

It is good practice to take before and after photographs, keep a written record of things as they happen and notify your landlord as soon as possible (preferable in writing as well).

Don’t underestimate the importance of knowing and understanding your housing rights. It could help save you a lot of hassle (and money) in the long run.

By Deborah Acquaah | Legal Clinic Coordinator