About common law tenancy rights
This page explains who has common law tenancy rights and how these can be added to by your tenancy agreement.
What is a 'common law' tenancy?
Having a 'common law' tenancy means that the agreement between you and your landlord is not regulated by a particular law; instead it's covered by the contract between you and your landlord and law which come from court judgements over many years.
How do I know if I have a 'common law' tenancy?
It's likely that you'll have a common law tenancy if:
you are a tenant - meaning you have permission to live in the landlord's property and you pay them rent, and
your tenancy is not an 'statutory tenancy' - for example it is not an assured, short assured, regulated, Scottish secure, short Scottish secure tenancy, private residential tenancy, or a tenancy regulated by another law.
Common examples of common law tenants:
tenants living with their landlord
students living in university owned student accommodation
homeless persons living in temporary accommodation provided by the council.
Common law tenants don't have as many rights as assured tenants or Scottish secure tenants, but this doesn't mean your landlord can walk all over you - you still have tenancy rights.
If I have a statutory tenancy, do I still have common law rights?
If you have an assured, short assured, a private residential tenancy, a regulated, or a Scottish secure, or short Scottish secure tenancy your tenancy is a 'statutory tenancy'. The rights in your tenancy agreement will override your common law rights.
However, if there are any gaps in your tenancy agreement, the common law can be used to fill them in. For example, if your central heating breaks down but there is nothing in your tenancy agreement concerning repairs, you can use common law and ask your landlord to fix it for you.
Will I have a tenancy agreement and what about deposits?
If you are a common law tenant you'll still have a tenancy agreement. The agreement can be in writing or verbal. However, it's always best to get it in writing if possible.
Your tenancy agreement should state:
your name and the name of your landlord
the address of the property you're renting
how much rent you will pay
how long you can live in the property for (the term of the lease).
You should also agree on:
when your rent is due and how you will pay it (for example, by cheque, standing order, etc)
what your rent includes - for example, does it cover bills (gas, electricity, phone, council tax, etc) or will you need to make a separate arrangement to pay your share?
who is responsible for repairs
whether you can leave before the end of the lease and how much notice you need to give
other house rules concerning guests, pets, smoking, etc.
Find out about deposits and tenancy deposit schemes - there are circumstances where landlords don't have to register your deposit in a tenancy deposit scheme so check what they need to do.
How do I make sure my tenancy agreement is fair?
Any rights or responsibilities written into your tenancy agreement should add to your common law rights. However, it's important to check that the terms of your tenancy agreement are fair before you sign it and move in.
Your tenancy agreement should be written in straightforward language that's easy to understand and it shouldn't contain any unfair terms. Examples of unfair terms might be a lease which says:
your landlord can change the terms of the tenancy agreement whenever they like and that you will have to accept the new terms
you have to pay for repairs that are your landlord's responsibility
your landlord can enter the property whenever they like, without giving you notice.
Last updated: 20 May 2020
Housing laws differ between Scotland and England.
This content applies to Scotland only.