Identifying a Protected Tenancy

Carmel Ferguson LLB, discusses how Housing Rights successfully helped a client who was being evicted from his home by getting his tenancy declared as protected.

Practitioners will be aware that since the implementation of the Private Tenancies (Northern Ireland) Order 2006, no new protected tenancies can be created.

However, there are still a number of protected tenancies in existence and it is important that practitioners are aware of what a protected tenancy is and how to act for a landlord or tenant who has one.

Helping Mark

For over 20 years. Mark’s home was a dwelling attached to a “Band Hall” owned by Trustees. When he had moved in to the property in 1994 it was in a very poor condition. Mark said that he had been told in no uncertain terms that the Trustees would not carry out any repairs and that if he took on the tenancy, he would take on responsibility for the repairs. He asked how long he could stay if he agreed to those terms and he was told that he could stay as long as he wanted. There was no written tenancy. He had paid rent of £40 per week since moving in to the property.

After 23 years of living in the property,  Mark received Notice to Quit. Mark had carried out significant repairs, including completely rewiring throughout, replacing the roof and chimney, replacing joists, installing a new bathroom,kitchen and doors throughout the property.

Mark was very distressed at the thought of being evicted from his home. He had believed this to be his home for life and he dreaded the prospect of having to move elsewhere, most likely in to an urban environment. He had specifically chosen the property for its peaceful setting, where he particularly enjoyed rearing chickens.

He suffered from a number of health problems including anxiety and high blood pressure and had undergone heart surgery a number of years ago. The stress of losing his home caused a deterioration in his health.

The Rent (Northern Ireland) Order 1978

The Housing Rights adviser formed the opinion that the property was a protected tenancy. This was significant for Mark, as a protected tenancy (as stated in the Rent (Northern Ireland) Order 1978) can only be brought to an end in specified circumstances and not simply because a landlord wishes to sell the property.

Criteria to become a protected tenancy

On checking the Rent Officers Register of Rents, the adviser confirmed that it was not on the Register. She was still of the view that the tenancy was protected, relying on the criteria set out in the Rent Order (NI) 1978, namely;

• The tenancy commenced prior to 1st April 2007
• The dwelling house was built or converted for letting before 1956
• The property was first let before 1st October 1978
• A tenancy existed on 1st October 1978

The adviser wrote to the Rent officer setting out the reasons and requesting that the tenancy be declared a protected tenancy.
The Rent Officer considered the matter and concluded that the tenancy was not protected because

(a) the property was registered as a Fee Farm Grant in the Land Registry and
(b) at one stage the property was rented out to the caretaker of the building.

Housing Rights felt that this was incorrect, and decided to appeal the decision to the County Court.

County Court application

To appeal the judgement, we submitted an application to the County Court for a Declaration pursuant to Article 69 of The Rent (Northern Ireland) Order 1978

We were able to secure Legal Aid for the client and the application was lodged in court, with a grounding affidavit setting out the history of the tenancy, exhibiting photographs of the property showing the condition when first occupied by the tenant and its current condition, along with the Land Certificate and NAV certificate.

The Landlord chose not to defend the proceedings. The Judge was satisfied that the Tenancy was in fact a Protected Tenancy and made a Declaration to that effect, and Mark is now free to enjoy the peaceful surroundings of his home as long as it continues to suit him.

Housing Rights helpline

If you are helping a client whose case may be more complicated than it originally appears, you can call Housing Rights helpline to see if we can assist. In certain circumstances we will take the case on and advocate for your client. You can call our helpline on 028 90245640 and select option 2 if you are calling from another organisation.