24 Oct 2019

Can room only leases be Private Residential Tenancies?

Can room only leases be Private Residential Tenancies?

The Upper Tribunal of the Housing and Property Chamber (UT) recently published a decision in which it held a tenant who had exclusive use of one room within a flat and shared common facilities with three other residents did not have a Private Residential Tenancy (PRT).

In Affleck and Brondson [2019] UT 49, the tenant took occupation of a flat in Edinburgh which was shared with three other residents. She was not provided with a tenancy agreement by the landlords, but parties agreed the entry date and rental charge via email. The tenant had occupied one bedroom and shared all other facilities with the other residents. Despite requests for a written tenancy agreement she was not provided with one until around August 2018. At that stage, the landlords provided an agreement which claimed the tenant was jointly and severally liable for rent in respect of the entire property. She refused to sign any such agreement and raised proceedings in the First-tier Tribunal (FTT) seeking remedies under the Private Housing (Tenancies) (Scotland) Act 2016. The FTT found there was no PRT within the meaning of the 2016 Act. Ms Affleck appealed to the Upper Tribunal who upheld the decision.

On Appeal, the UT considered the definition of a PRT contained in Section 1 of the 2016 Act. Section 1 (1)(a) states a tenancy can only qualify as a PRT if ‘the tenancy is one under which a property is let to an individual as a separate dwelling.’  Regardless of whether the tenant was entitled to a pro indiviso share of the entire flat, or to one room with access to common facilities, there was no dispute that she did not occupy the property as a separate dwelling.  The UT determined the flat was a communal dwelling and accordingly held that although there was a lease, it was not a PRT.

The decision may have sparked concern for landlords who currently let similar properties to several tenants under PRT agreements. This situation is not uncommon, for example, when letting to groups of students in HMO type properties.

It is however worthy of noting the tenant was not legally represented during the appeal process. As such, the UT judge does not appear to have been referred to or considered Section 2 of the 2016 Act.

Section 2 (2) reads:
“A tenancy is to be regarded as one under which a property is let to an individual notwithstanding that it is let jointly to an individual, or individuals, and another person.”

Section 2(4) reads:

” A tenancy is to be regarded as one under which a property is let as a separate dwelling if, despite the let property lacking certain features or facilities––
(a)the terms of the tenancy entitle the tenant to use property in common with another person (“shared accommodation”), and
(b)the let property would be regarded as a separate dwelling were it to include some or all of the shared accommodation.”

Those provisions make it clear that where a tenant only has exclusive use of part of a property and share other facilities, the tenancy should still be considered a separate dwelling.

The FTT is generally bound to follow Upper Tier Tribunal decisions. Equally, the FTT cannot ignore provisions contained within primary legislation. There is therefore question over whether the UT judge’s decision in this case will be truly binding. Until a case comes before the UT in which consideration is given to Section 2 of the 2016 Act, it appears safe for Private Sector landlords to continue to let room only accommodation with shared facilities as PRTs, assuming all other conditions for establishing a PRT are met and none of the exclusions contained in Schedule 1 of the 2016 Act apply.

If you require any further information or advice, please contact Kirstie Donnelly.

LinkedIn: https://www.linkedin.com/in/kirstie-donnelly-a77060a6