People often assume that if the landlord or tenant dies, then that is the end of the tenancy. However, this is not the case.

There is an important difference here between a residential license and a tenancy.

A tenancy is one of the two types of ‘legal interest in land’ permitted by the Law of Property Act 1925. These are

• An estate in fee simple absolute in possession – i.e. freehold, and
• A term of years absolute – i.e. leasehold

So, a tenancy is a type of lease. A very short lease (which will be even shorter after the Renters Rights Bill gets the Royal Assent when the period will be monthly), but nonetheless a lease. Or ‘a term of years’ – even though the term may be less than a year.

A tenancy is a ‘thing’ which exists on its own after either or both parties have died and which is capable of being sold on. Which is very different from a residential license

A residential license, on the other hand, is a personal agreement or contract between the landlord and the licensor, which means that the occupier is not a trespasser.

So, as it is a personal agreement, it cannot last beyond the death of one of the parties.

Sham licenses

This may seem fairly straightforward. However, you also need to watch out for sham licenses. This is where a landlord makes an occupier sign a form of agreement which states that the occupier has a residential license when, in fact they have a tenancy.

The main case on this point is the House of Lords decision in Street v. Mountford in 1985. The Court held that in most cases where there is an exclusive occupation at a rent for a term, it will be a tenancy, whatever the written agreement signed between the parties may say.

So if a landlord dies and the person who inherits tries to evict the occupier on the basis that they have a license, the occupier/tenant will be able to sue for compensation for unlawful eviction and an injunction to let them back in again.

And finally

If you are a landlord or an agent managing a property and one of the parties dies, you need to be careful how you deal with things.

In most cases, the occupier will have had a tenancy which has to be ended properly before the landlord or his executors can retake possession.  Make sure you follow the proper procedure and take advice if you are not sure.

The post Urban Myth – a tenancy will end if the landlord or the tenant dies appeared first on The Landlord Law Blog.

This is a question to the blog clinic from Jane who is a tenant in England.

I had a tenancy agreement when I first moved in but it has ran out and my landlord hasn’t bothered to renew it what I’m wondering is I have a guarantor is she still liable for rent if I was in arrears?

Answer

When a fixed term ends, and the tenant remains in occupation, the tenant will acquire a periodic tenancy. This will either be under s5 of the Housing Act 1988, when it is called a statutory periodic tenancy. Or the periodic tenancy will be provided for in the tenancy agreement, in which case it is called a contractual periodic tenancy.

Periodic tenancies will have the same terms and conditions as the previous fixed-term tenancy.

When the Renters Rights Bill comes into force, this will all change, though, as fixed terms will be abolished, and all tenants will have periodic tenancies.

So far as the guarantee is concerned, it will depend on what the agreement says. So you or the guarantor need to read it. But in most cases, it will continue after the end of the fixed term.

The main reason why guarantees end (other than the tenancy ending) is the rent going up. I discuss this here.

The post Will a guarantor still be liable under the guarantee if the fixed term has ended? appeared first on The Landlord Law Blog.