Can there be a protected tenancy with a live-in landlord if the landlord is a landlord by purchase?

Here is a question to the blog clinic from Lucy (not her real name), who is a landlord.

I have a Protected/ Assured Tenant. We bought the property at a reduced rate with him in situ. It was a calculated risk as the old owner, and the tenant had told us that he would be moving out within a year or so waiting to be housed by the council elsewhere with his partner.

Four years later, we are still waiting for him to leave as he has not been able to as the council refuse to pay the amount of housing benefit he would need for him and his partner to live together in a new flat. (They are both on Housing and Disability Benefit and if they go in together, their housing benefit will be reduced to such a degree that they couldn’t afford to live together).

My question is: is he still a Protected Tenant if he lives with me, a live-in Landlord?  He walks through my hallway to get to his bit on the top floor and shares my shower-room and toilet.

I’ve had two Estate Agents round who have had some dealings with Protected Tenants before, and one of them was adamant that he was not a PT in this situation.

Answer

‘Protected tenants’ are tenants whose tenancy started before 15 January 1989 when their tenancy will fall under the Rent Act 1977.

Normally I would agree with the estate agent – a tenant of a resident landlord will not be either an assured/assured shorthold or (if the tenant went in before 15 January 1989) a protected tenant.

However, if you look at the relevant clause in the Rent Act 1977, which is section 12, it is clear that this only applies to the original landlord.

12 Resident landlords.

(1) … a tenancy of a dwelling-house granted on or after 14th August 1974 shall not be a protected tenancy at any time if—

(a) the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats, and

(b) the tenancy was granted by a person who, at the time when he granted it, occupied as his residence another dwelling-house which—

(i) in the case mentioned in paragraph (a) above, also forms part of the flat; or
(ii) in any other case, also forms part of the building; and

(c) subject to paragraph 1 of Schedule 2 to this Act, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to a person who, at the time he owned that interest, occupied as his residence another dwelling-house which—

(i) in the case mentioned in paragraph (a) above, also formed part of the flat; or
(ii) in any other case, also formed part of the building.

So as you are a landlord by purchase rather than the original landlord, I am afraid you are bound by the protected tenancy.

This just goes to show how important it is to obtain proper legal advice before buying a tenanted property – in particular, to find out what type of tenancy the occupiers have and what your options are if you want to recover vacant possession.

Note that landlords can always obtain reliable legal advice via the Landlord Law Telephone Advice service, which gives you 30 minutes with a specialist landlord and tenant solicitor.