Tenancy agreements for people with learning disabilities

Introduction

The House of Lords in a case in 1986 set out the key elements of a tenancy to be:

• exclusive occupation of land/premises
• payment of rent
• for a term (for a week or a year etc.)

Services included in a tenancy include the provision of bricks and mortar, housing management, repairs and maintenance and services such as the provision of white goods, furniture, gardening, communal utilities etc.

Tenancies and licences to occupy

A tenancy grants 'an interest in land', established by the payment of rent and a contract conveying rights and responsibilities on both parties, landlord and tenant.

A tenancy will usually be offered on an assured or an assured shorthold basis. Assured tenancies are not specifically time limited and can only be brought to an end under certain grounds described in the Housing Act: see link

Assured tenancies are usually granted by Registered Providers (Housing Associations) and specialist landlords, often not for profit organisations.

The other type of tenancy agreement is Assured Shorthold. This is for a defined period, usually 6 or 12 months but can be any timescale. At the end of the defined period either of the parties can end the contract. If both want to carry on, the agreement reverts to a periodic tenancy, which allows both parties to give each other an agreed amount of notice (usually 1 month from the tenant, 2 from the landlord) when either wants to bring the contract to an end.

In shared accommodation, the tenancy will need to be one joint agreement signed by all occupants, or separate individual agreements granting exclusive occupation of a bedroom and shared use of any communal areas. This last option is usually most appropriate as joint agreements make each tenant “joint and severally liable”, meaning that if one person defaults or otherwise goes against the terms the other tenants will also be subject to any action the landlord wishes to take. If one tenant leaves, the whole agreement comes to an end, and the landlord may not issue a new agreement for the remaining tenants.

Some landlords may offer licenses to occupy. These are not the same as tenancies as they don’t grant a legal interest in the land in the same way. They only allow the licensees to live in the property as long as the landlord wishes, with no rights to quiet enjoyment or right to remain if the landlord wants to evict at any time. Licenses are applied in registered care homes.

Capacity

The law and practice around mental capacity, decision-making and tenancies, including who signs, is complex. Please see this document for more detail on the legal status of contracts where capacity is an issue.