Shared accommodation and tenancy rights

The precise legal status of the occupant is of importance in an HMO as it determines their rights in relation to a range of matters including repairs, eviction, succession and rent. This section also looks at problems with joint tenancies.

This content applies to Scotland

Check the tenancy agreement

For example all assured, private residential and Scottish secure tenants are entitled to a written tenancy agreement. Even if they do not receive one they will be Scottish secure or assured tenants or private residential tenants as long as they meet the statutory criteria.[1]

If there is no written agreement 

Advisers should try and collate evidence of what has been agreed by the parties. 

  • what was agreed with regards to rent, subjects, parties and duration

It can be important to note whether the tenant agreed to pay only a set amount for their own part of the rent or whether there was agreement for them to pay a share of the combined rental amount. For example four tenants may each have a sole agreement to rent a room in a shared house for £250 but joint tenants would pay towards the combined rent of £1000. See also the section below on joint tenancies - rent for the implications of this. 

  • what did the parties do, for example did the tenant pay an amount of rent each month to the landlord or did they give it to the other housemates

  • evidence of what has been agreed may include things like text messages or emails in absence of anything more formal  

  • conversations may be useful if there were witnesses. Note details of dates and times of these conversations

  • identify clearly which parts of the property are shared and whether there are any parts where the tenant has exclusive use. 

A sketch showing the room layout can sometimes be useful. Note if anyone changed their room over the course of the tenancy.

Licenses and occupancy agreements

Where the occupant has an agreement which calls itself a 'license' or an 'occupancy agreement' and stating that the person's occupancy agreement does not amount to a tenancy then the position can be unclear. In this situation all the circumstances must be looked at, as the courts will examine the reality of the situation rather than simply accepting what the agreement says.

Resident landlord

A resident landlord is a person who owns or rents and lives in accommodation as their principal home but lets out a room or rooms to someone to whom they are not related.

Where the landlord and tenant share a common entrance to the accommodation, the landlord is a resident landlord. This means the person living with them as a tenant will not have the protection of an assured tenancy or a private residential tenancy. [2] If the tenancy began before 2 January 1989 and has continued since then, the tenant would probably be a partial protected tenant. However such tenancies are now extremely rare if not extinct, see the section on Part VII contracts for more information.

Generally the person residing with the resident landlord will only have limited rights. These rights will be in terms of the contract, for example details of the subjects and the terms of the lease, the right not to be evicted without due process (i.e. a court order) and the right to a notice to quit giving at least 28 days' notice. If the let exceeds four months the tenant is entitled to 40 days'. [3]

Further information about the rights of tenants with resident landlords can be found in the section on common law tenancies.

Student accommodation

This covers accommodation provided directly by a higher education institution, such as a university or college, or be purpose built accommodation for students. These tenancies can be houses in multiple occupation and may be governed by the HMO licensing scheme. The students cannot not be private residential tenants [4] or secure tenants [5] but may have a tenancy at common law. 

For further information, please see the section on student accommodation.

Sharing facilities with others

A typical situation in an HMO is where a person occupies a bedroom and shares facilities like the kitchen and bathroom with others. Provided that the tenant has exclusive possession of at least some of the accommodation, for example a bedroom, the tenancy can be a private residential tenancy [6] (depending on date tenancy began). HMOs may also apply in some public and voluntary housing sectors. Use the tenancy checker if there is any uncertainty.

Landlord access

The Upper Tribunal has clarified that, unless it’s an emergency, landlords must give all tenants in a shared HMO tenancy notice before accessing the property, even if the purpose of the visit is only to inspect communal areas [7].

Joint or single tenancy

A difficult issue in HMOs is ascertaining whether a tenant is a single tenant or a joint tenant and who are the other joint tenants. Whether a person is a joint tenant depends on the circumstances in which the tenancy began. Criteria includes the following:

  • If all the tenants took entry at the same date to the same property signing the same tenancy agreement, they will almost certainly be joint tenants.

  • If the tenants took entry to the property at different dates but have signed the same tenancy agreement, they will probably be joint tenants.

  • If the tenants took entry to the property at different times, but the person joining later has formally been assigned the outgoing tenant's interest in the flat and they are a joint tenant, the incoming tenant will also be a joint tenant.

  • Where the tenants have signed individual tenancy agreements, it is unlikely that they will be joint tenants unless the agreement by implication or express reference specifies that status.

  • Where one or more of the tenants has no contractual agreement with the landlord, for example they have moved in place of a previous tenant and failed to inform the landlord, that person is unlikely to be a joint tenant and will probably be a sub-tenant.

  • Where the nature of the HMO is such that in reality there are a number of different households with little if any contact between the occupants, for example a building converted into a series of self-contained bedsits, there is unlikely to be a joint tenancy.

Joint tenants - rent

Where a tenant is a joint tenant they are jointly and severally liable for all liabilities relating to the tenancy. This means all the tenants are responsible for all of the rent (not just their own 'share')

This applies unless there is a specific exclusion of that liability. 

If one tenant leaves without paying their share of the rent the landlord may legally require the remaining joint tenants to make up the absconded tenant's share. 

If the tenancy has not been correctly terminated, or cannot be terminated those tenants have a right to claim that money back from the absconded tenant if they can be found.

Joint tenants - possession action

Equally if one joint tenant is guilty of anti-social behaviour the landlord may seek decree of recovery of possession against all the joint tenants. [8] However, the court must also consider the reasonableness of such a claim and the 'innocence' of the joint tenants.  [9]

Where the landlord wishes to terminate a joint tenancy notice must be served on all of the joint tenants. [10] If the landlord wishes to evict one tenant they will need to raise an action for recovery of possession against all joint tenants. [11]

Joint tenancies - termination

Where a joint tenancy exists confusion can sometimes arise if a tenant wants to end their tenancy.

Assured tenancies - see the section: The tenant wants to leave.

Private residential tenancies - see the section: The tenant wants to leave.

Modifying the right to shared accommodation

Tenants in shared accommodation may have rights to share parts of the accommodation with others. For example they may have exclusive occupation of a bedroom but share the kitchen and living room with other occupants. If the landlord wants to modify the rights to the shared accommodation and the tenancy is assured or regulated they may make an application to the First Tier Tribunal Housing and Property Chamber. [12] If the tenancy is a private residential tenancy there is no right for the landlord to modify the right to shared accommodation unless there is agreement by the tenant. [13]

Last updated: 3 December 2020

Footnotes

  • [1]

    s.12 Housing (Scotland) Act 1988; s.23 Housing (Scotland) Act 2001

  • [2]

    sch.4 Housing (Scotland) Act 1988

  • [3]

    s.38 Sheriff Court (Scotland) Act 1907

  • [4]

    sch.1 para. 5 Private Housing (Tenancies) (Scotland) Act 2016

  • [5]

    s.44 Housing (Scotland) Act 1987

  • [6]

    s.1 and s.2(4) Private Housing (Tenancies) (Scotland) Act 2016

  • [7]

    Ostendorf v. Rollo Solicitors & Estate Agents (2021) UT 11 UTS/AP/20/0020

  • [8]

    See for example ground 15 Housing (Scotland) Act 1988 and ground 7 Housing (Scotland) Act 1987

  • [9]

    Glasgow District Council v Brown 1988 SCLR 433, 679

  • [10]

    Geddie's Trustee v Geddie (1897) 24 R 1128

  • [11]

    Sheriff Court (Scotland) Act 1971

  • [12]

    For assured tenancies - rule.66A and for regulated tenancies rule 88. First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations SSI 2017/328.

  • [13]

    s.9 Private Housing (Tenancies) (Scotland) Act 2016