Category: Tenants

Unlike rodents, wasps and cluster flies, bats are not pests. As population numbers have fallen, all bats and their roosts are protected under The Wildlife and Countryside Act 1981 (as amended) and The Conservation of Habitats and Species Regulations 2010 (as amended). Under these pieces of legislation it is illegal to:

* deliberately capture (or take), injure or kill a bat;
* intentionally, recklessly or deliberately disturb a bat. In relation to the The Wildlife and Countryside Act 1981 (as amended) the offence applies whilst the species is occupying which it uses for shelter or protection; in relation to the Conservation of Habitats Regulations 2010 (as amended) it applies anywhere;
* damage or destroy the breeding or resting place (roost) of a bat;
* possess a bat (alive or dead), or any part of a bat;
* intentionally or recklessly obstruct access to a bat roost;
* sell (or offer for sale) or exchange bats (alive or dead), or parts of bats.

Under the law, a roost is any structure or place used by bats for shelter or protection. Because bats tend to re-use the same roosts year after year, the roost is protected whether or not bats are present. In this context ‘damage’ could include treatment with chemicals found in wood preservatives.

For more information contact the Bat Conservation Trust here

Where a tenant expresses a wish to leave during a fixed term or vacate without giving the notice defined in the tenancy agreement, this is an offer to surrender. A landlord may accept or refuse such an offer.

Surrender by operation of law

An agreement by the landlord and the tenant that the tenancy shall be put an end to, acted upon by the tenant leaving the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law. Phene v Popplewell (1862) 12 C.B.N.S. 334.] The giving and taking of possession must be unequivocal.

Acceptance of keys

Acceptance of the keys by the landlord is not in itself necessarily a surrender; it depends why the keys were accepted.

Acceptance of keys in lieu of notice

In Laine v Cadwallader (2001) 33 H.L.R. 36 the tenant was required to give at least four weeks notice to quit. The act of putting the keys through the landlord’s letterbox amounted to an offer by the tenant to surrender the tenancy early, which the landlord by implication accepted as the required notice commencing on that day. The landlord was therefore entitled to recover rent equivalent to that four week notice period.

Home businesses are now common but until recently giving a tenant consent to operate a business from their rented home was tricky because the landlord did not want to inadvertently give the tenant a business tenancy that could be caught by Part 2 of the Landlord and Tenant Act 1954. A tenancy under those provisions can – in certain circumstances – give a tenant a right to a renewal tenancy upon expiry of their term, effectively giving a tenancy for life.

On 1 October 2015, the Small Business, Enterprise and Employment Act 2015 was enacted and helps landlords and tenants overcome this problem.

Home business tenancy

Section 35 of the Small Business, Enterprise and Employment Act 2015 essentially allows a landlord to grant a “home business tenancy” and such a tenancy is specifically excluded from any protection under Part 2 Landlord and Tenant Act 1954. This applies to any new home business tenancy granted from the 1 October 2015 in England and Wales except:

• a tenancy which is entered into before 1 October 2015
• a tenancy which is entered into on or after 1 October 2015, pursuant to a contract made before that day; or
• a periodic tenancy which arises at the end of the term where the original tenancy was before 1 October 2015 (where the tenancy is an assured shorthold tenancy).

If a tenancy meets the following conditions, it will be regarded as a “home business tenancy” for the purposes of the legislation:

• a dwelling-house is let as a separate dwelling,
• the tenant or, where there are joint tenants, each of them, is an individual, and
• the terms of the tenancy—
• require the tenant or, where there are joint tenants, at least one of them, to occupy the dwelling-house as a home (whether or not as that individual’s only or principal home),
• permit a home business to be carried on in the dwelling-house, or permit the immediate landlord to give consent for a home business to be carried on in the dwelling-house (whether that be a particular home business, a particular description of home business or any home business), and
• do not permit a business other than a home business to be carried on in the dwelling-house.

What is a home business?

A “home business” is defined as:

a business of a kind which might reasonably be carried on at home.

But, a business is not to be treated as a home business if it involves the supply of alcohol for consumption on licensed premises which form all or part of the dwelling-house.

There are provisions allowing regulations to be made prescribing cases in which businesses are, or are not, to be treated as home businesses. However, at the time of writing there doesn’t appear to have been any regulations made.
Our thoughts as to what businesses could “reasonably be carried on at home” might include:

• Web designer
• Accountant
• Financial advisor

Businesses which might not be suitable could include:

• Dentist
• Mechanic

Let as a separate dwelling

Section 36(2) specifically provides that where a home business tenancy is let as a separate dwelling, that is “let as a separate dwelling” for the purposes of an assured or assured shorthold tenancy. What this effectively means is that an “assured shorthold tenancy” can also be a “home business tenancy”. They are effectively the same thing if the tenancy contains the terms mentioned earlier.

Mixed use

A dwelling-house which is let for mixed residential and business use is capable of being let as a dwelling for the purposes of the legislation.

If, a dwelling-house is let together with other land, then, the following applies –

• if the main purpose of the letting is the provision of a home for the tenant, the other land is to be treated as part of the dwelling-house, and
• if the main purpose of the letting is not as a home, the tenancy is to be treated as not being one under which a dwelling-house is let as a separate dwelling.