Licence or tenancy?

lance84

If a licence agreement is held to be a tenancy agreement by the courts, will the occupier be allowed to stay in the property up-to 6 months from the date they moved in and signed the license, or will it be 6 months from the date the court held the license to be a tenancy?

G_M

I imagine that what has happened is that:

* Occupier moved into property on date A
* Occupier (or landlord?) applied to court claiming they were a tenant, not licencee
* On date B, court determined that occupier was indeed a tenant
* thus occupier's tenancy started on date A

However the specific circumstances may vary the above, and without reading the judge's ruling it's impossible to be sure.

For example,

* Occupier may have moved in, as a lodger (licencee) sharing with landlord on date A
* landlord may have moved out on date B
* occupier may have applied to court
* on date C, court may have ruled that as of date B occupier became a tenant.

In either case (or any other!), the occupier would have attained the protections of a tenancy from the relevant date (eg no S21 can be served for 6 months from that date).

theartfullodger

If courts find it is a tenancy not a license then likely the landlord failed to do loads of things that would invalidate an s21 (eg deposit protection, serve GSC prior to start etc etc..) and it could turn out an s21 will NEVER be valid.. so occupant can stay as long as he likes, as long as he pays the rent.

Do tell us more about the bampot landlord and what he tried to do, please?

lance84

Thank you for your answer G_M.

I'm actually looking to start a Property Guardian Company in the London area, which would initially look to deploy Guardians for single 'shop front' units. However, there is a lot of discussion about the legal status of occupation for Property Guardians or any property licences, so I naturally have some concerns over the possibility of a Guardian refusing to leave and applying for 'exclusive possession'.

Surely, a monthly rolling license would prevent this from happening ??

lance84

Thanks for your reply.

Say if the landlord (or property owner) refuses to accept any rent because he/she wants their property back for a genuine reason ie. redevelopment or having sold the property, then something can be done?

G_M

lance84 wrote: »

Surely, a monthly rolling license would prevent this from happening ??

How?

If a court rules it is a tenancy, then a S21 cannot be served to expire within the 1st 6 months (see Housing Act 1988 & Deregulation Act 2015 ).

and as artful points out,, there are multiple other reasons a S21 would be invalid.

For an idea of how complex it is to serve a valid S21 to end a tenancy, see:

S21 checklist (Is a S21 valid?)

and note that once it is established that it IS a tenancy, it can only be ended by the landlord following a valid S21 (or a S8 eg for rent arrears).

G_M

lance84 wrote: »

Thanks for your reply.

Say if the landlord (or property owner) refuses to accept any rent because he/she wants their property back for a genuine reason ie. redevelopment or having sold the property, then something can be done?

Your choice of words is confusing.

'refuses to accept rent' suggests that a tenancy exists and rent is due but the LL refuses to accept it when offered. That would not alter the status of the tenancy.

Do you perhaps mean 'does not charge any rent'?

If there is no rent charged in return for the property (either in the form of cash or kind), then there is no tenancy. It would, I believe, be a licence to occupy.

However as you are setting up a business venture, and this is clearly a critical factor in the business model, I strongly recommend you to take expert legal advice rather than rely on a few amateurish if well-meaning saddos on the internet.....

[Deleted User]

While you are with the suitable specialist solicitor, it would probably be worth asking what are the minimum facilities that would have to be provided i.e cooking, sanitation, washing/bathing, cleanliness (my ex works as a security guard and has to work in places that have been squatted. Obviously a different thing but the state of them is often appalling).

I suspect it is going to be a difficult business to make any money out of.

There are at least a couple of large companies that already do property guardianship. Perhaps you could look into how they do things.

Savvy_Sue

I have a feeling there's been this very issue in Bristol, where people living as guardians have claimed tenancy status. Do your research very carefully ...

lance84

Thanks for the quick response all your help guys !!!

I'm still very much in the research stage - just trying to get my head around it all, and yes, it's a very critical factor in the business model which I need to build before I can start writing a business plan.

Of course, theory is just theory, and I desperately need some expert advice from specialist solicitors with first-hand experience dealing with Property Guardians schemes and companies. I would also like to talk to some of these Property Owners to discuss the practicality of putting Guardians in these Properties.

From my understanding the only statutory protection of the licensee's rights is the Protection from Eviction Act 1977 which requires notice ending the right to occupy of a least 28 days, in writing and with certain required formailities. Since you would require a court to find a licence agreement to be held a tenancy agreement and considered 'exclusive possession' and therefore subject to S21 or S8. In the unlikely case that this happens, no S21 can be served 6 months from the date the Guardian moved in. I believe it gets more complicated with all the compliance requirements and the health and safety obligations that Property Guardian Companies must meet in order to even apply for a S21 or 8.

H&S is a big subject as well - Gas, Electrical Safety, Fire Assessment and Safety, Asbestos, etc.

Now there seems to be an increasing amount of vacant shops around London. Not all of them are ideal, especially the large shops on main busy high-roads, but the smaller 'shop fronts' on quieter roads may have the potential to be protected and lived in by Guardians. I would like to grow from here and build the business. For some reason the other Guardian companies have not prioritized 'shop fronts'. However I do have a few concerns about fitting in temporary showers and cooking facilities within some of these small 'shop fronts', since in some cases, the cooking facilities will be in the same room as the bedroom. Anyways, do you see any legal or regulatory issues with the kitchen (or cooking facilities) being in the same room as the bedroom (not divided into individual rooms)? I am aware that installing temporary showers and cooking facilities is a common practise with Property Guardian companies, but could any insurance issues arise when dealing with single 'shop front' units?

Any opinions would be greatly further appreciated.

P.S. Thanks for the 'check list' G_M . I found that very useful
Oh, I really don't think you guys amateurish .... You both seem very knowledgeable

lance84

I had initially thought that, but in recent years there has been an influx of shops closing down in the London area; as well as security and specialist companies offering 'property guardian' services in the UK and around Europe. Commercial properties are always closing down with the potential to remain vacant for 6 months. Ad hoc and Camelot are large companies that dont even bother with area-specific single 'shop front' units. Part of my business plan will also be to offer the property owner an income generation programme, at the same time, they can mitigate their business rates and their lower insurance premiums. I have been a Guardian for 2 years so I have no intention of placing Guardians in dire conditions, or run-down council flats. Not only do I intend to fix up these premises to a liveable standard but I will make a concerted effort to make them look nice. Now I know that some of these Property Guardian companies have required a bad reputation but the business is evolving and has become more mature and socially responsible.