The Rent Act 1977 governs all tenancies which commended pre-15 January 1989. These tenancies are often referred to as ‘protected tenancies’, ‘statutory tenancies’ or ‘regulated tenancies’. The crucial date is the date when the tenant first entered the property and a landlord cannot change the nature of the tenancy by giving the tenant a new tenancy agreement or by moving them into another property. A tenant is referred to as a ‘sitting tenant’ ( or a ‘protected tenant’) in cases where he or she is legally entitled to live in a property pursuant to a contractual or statutory tenancy. Due to the effluxion of time, in most cases the original contract will not be available but the determination of the type of tenancy is a matter of factual evidence.
When a tenant (sitting tenant) dies the tenancy may nevertheless still continue. If the tenant was a joint tenant, the surviving joint tenant will become the sole tenant. If a sole tenant has a spouse, that spouse (who may be a ‘same sex partner’) may succeed the tenancy as a Statutory Rent Act protected tenant provided that the deceased tenant was the original tenant and not a tenant by succession. If there is no surviving spouse or if the deceased tenant was a tenant by succession, there may be a second succession to a ‘family member’ who was living in the property at the time of the tenants’ death and for at least two years beforehand. This family member is then entitled to succeed to an assured tenancy under the Housing Act 1988 and the rent will be assessed as an ‘open market’ rent as opposed to a ‘fair rent’ which is registered by the Rent Officer. The open market rent will generally be less than the usual comparable rents because most properties that are let on market rents have been fully modernised (whereas properties let on regulated tenancies tend to be unmodernised).
Tenancies which are subject to rent control by the Rent Officer may only have the rent reviewed every two years, unless the property has been substantially improved in the meantime. The Rent Acts (Maximum Fair rent ) Order 1999 was passed to protect tenants (sitting tenant) who had until then been subjected to high rental increases compared to the tenants income. Given that many of these tenancies are likely to apply to elderly people receive ‘housing benefit’, it is perhaps not surprising that the Order was introduced to restrict the payments having to be funded by the Government.