Let’s hear it for Protected Tenancies

Our regular guest blogger Ben Reeve-Lewis puts his thinking cap on.

Protected tenancies

After posting a few bits and pieces on Tessa’s site I was thinking about how much we all talk about Assured Shorthold Tenancies and Assured Tenancies, but did you know there are around 16 or so different tenancies out there?

I wanted to give you all a heads up on Protected Tenancies. “What the hell are they”? you all shout Some people I meet say “Oh those. But there aren’t any of those left are there?”……….Yes, Loads comes my reply.

Protected tenancies – what are they?

To be a Protected tenant you must have a non-resident landlord (in other words you aren’t a lodger) and your tenancy must have begun before the 15th of January 1989. Simple!!!! But what does it mean?

Well a Protected tenant will have a regulated or fair rent set by the old rent officer (now the VOA). AND….with Protected Tenancies there is no automatic right for the landlord to get possession like there is for Assured Shortholds and, more importantly, the landlord doesn’t get to choose the rent level, the rent officer does that and it is what is termed a Fair (i.e., non-market level) rent that the landlord cant dabble with.

I have a client at the moment in a 2 bed flat in a converted Victorian south London house where the market rent would be around £1,100 – £1,200 per month and he is paying a fixed, fair rent of £350.

Unless the tenant does something wrong, such as getting into arrears or causing a nuisance to neighbours they can stay as long as they like. A landlord can’t just sell a property from under a Protected Tenant. Effectively a landlord is stuck with a protected tenant for life at a small rent.

Yeah but I have only been a landlord for 3 years so it doesn’t affect me.

HA!!!!! Not necessarily. You can inherit them. If a person moves into property before the 15th January 1989 and hasn’t moved and you then buy a property with a sitting tenant in then you are bound by the conditions of their old style tenancy.

Or, if a protected tenant dies and their wife or husband (but not other family member) dies then their partner will also become a Protected tenant, even though it is long after 1989.

If a Protected tenant moves properties but still retains the same landlord then their Protected status will go with them.

How the hell did that happen then?

Protected tenancies (also commonly called ‘Rent Act Tenancies’ or ‘Regulated Tenancies’) were governed by the old tenant friendly Rent Act 1977. When Margaret Thatcher came to power in 1979 she was concerned about the amount of empty properties there were in the UK and the amount of homeless people there were and she came to the conclusion that the reason landlords weren’t letting was because the law was too biased in favour of the tenants so she created the Housing Act 1988, which brought us Assured and Assured Shortholds, with an automatic right of possession after a fixed term, and abolished the concept of market rents for everyone except Protected tenants. This was to incentivise landlords to start letting those empty properties and it did.

And we have been with that situation ever since. I don’t know how many Protected tenancies there are still out there, but still enough to not raise too much of an eyebrow when I come across them.

If I have one, how can I get rid of them?

A good question. Very difficult. The usual way is to negotiate a buy-out so you can start letting your property at a market rent level. How much will that cost? Well a cautionary tale. Let me take you back to around 1995. I was approached by an elderly woman renting a bedsit. The large property was bought by a GP, who asked everyone to leave. All tenants did and found new places to live, except my woman. She moved in on the 11th of January 1989….just 4 days before the new legislation, so she was a protected tenant, paying just £25 a week for her room.

He issued her with a section 21 notice, prior to going to court for possession. I warned him that it wasn’t valid because she was an old style tenant but he went ahead, and promptly lost the case.

After much too-ing and fro-ing he finally gave in and paid her £25,000 to leave so he could get vacant possession. That was 15 years ago.

Protected Tenancies are a bit of renting history, but a bit that is still alive and well. They take us back to the rent riots of 1917 and the slowly building raft of landlord-Tenant law that reflected the depression of the 1930s, the Second World War, the creation of the welfare state and Peter Rachman. The 1988 Act threw all that out of the window, but a few lucky souls are still renting a Mayfair flat for 2 toffees and a Florin.

Ben Reeve-Lewis

About Ben Reeve-Lewis: Ben has worked in housing in one form or another since 1987. He has variously been a Homelessness caseworker, Head of Homelessness for a local authority, a Tenancy Relations Officer and Housing law trainer. He now divides his time between doing contract Tenancy Relations work and as a Freelance housing law training consultant for the CIH, Shelter, Sitra and many more. Read more about Ben here.