As published in Property Law Journal, December 2014 / January 2015.
Whether a lease is protected under the Landlord and Tenant Act 1954 (“the 1954 Act”) affects the position of the parties at the end of the fixed term. Whilst a protected tenancy can continue under statute and the tenant can seek a new lease; an ‘excluded’ or ‘contracted out’ lease will simply end when the fixed term expires.
In the real world, however, there are many examples of tenants remaining in occupation (or “holding over”) following the expiry of their contracted out lease. This typically occurs while the landlord and tenant are in the process of negotiating the terms of a new lease, or while the tenant is looking for new premises.
When a tenant’s occupation is allowed to continue unregulated in these circumstances, its occupational status can be uncertain. What are the (former) tenant’s rights of occupation? How, and how quickly, can the landlord recover possession? The Courts have been faced with these questions in a number of cases over the years, the most recent being Barclays Wealth Trustees (Jersey) Limited v Erimus Housing Limited  2 P. & C.R. 4.
This article considers the likely position of the tenant in these circumstances, the important distinction between a tenancy at will and a periodic tenancy, and the factors taken into account by the Court in determining occupational status. It also identifies some practical points for both landlords and tenants.