Common Law Tenancy
A common law tenancy is a residential letting that sits outside the assured and assured shorthold tenancy regime of the Housing Act 1988, governed by the tenancy contract and common law rather than by the statutory rules. In England it typically arises where annual rent exceeds £100,000, the tenant is a company, or the property is not the tenant's only or principal home.
What is a common law tenancy?
Most private residential lets in England are assured shorthold tenancies, which carry statutory rules on deposits, rent, and possession. A tenancy that fails the conditions for an assured tenancy under section 1 of the Housing Act 1988 instead takes effect as a common law tenancy. Its terms come almost entirely from the contract, so the drafting carries more weight than it does in a standard AST. The category is residual: it is defined by what it is not, rather than by a statute of its own.
When does a tenancy fall outside the assured regime?
In England the common triggers are an annual rent above £100,000, a corporate tenant (the assured regime requires the tenant to be an individual), and lettings where the occupier does not live in the property as their only or principal home. Holiday lets and certain very low rents also fall outside the regime. These thresholds are England-specific: Wales applies its own version and Scotland and Northern Ireland have entirely separate systems.
How deposits and possession work
There is no statutory duty to protect a deposit taken on a common law tenancy in a government-approved scheme, because that obligation attaches to assured shorthold tenancies that began after 6 April 2007. An operator can still choose to protect it. Possession works differently too: the assured-tenancy procedures do not apply, but the Protection from Eviction Act 1977 does. The tenancy is ended by a valid written notice to quit (at least four weeks), and if the tenant will not leave, a court order is still required. Narrow "excluded" arrangements, such as a lodger sharing with a resident landlord, are an exception to the court-order rule.
Why common law tenancies matter for student and BTR operators
Since the Renters' Rights Act 2025 came into force on 1 May 2026, fixed-term assured shorthold tenancies and Section 21 evictions have been abolished, and existing assured and AST agreements converted to rolling assured periodic tenancies. That removed the fixed term most operators relied on. Purpose-built student accommodation is the important exception: a commercial PBSA provider can keep letting on fixed-term tenancies outside the assured regime, but only where it is a member of the specified ANUK/Unipol Code of Standards for Larger Developments for student accommodation not managed and controlled by educational establishments. The exemption is not retrospective, so any PBSA tenancy granted before 1 May 2026 converted to an assured periodic tenancy.
Key takeaways
- A common law tenancy sits outside the Housing Act 1988 assured/AST regime and is governed mainly by the contract.
- In England it typically applies where rent exceeds £100,000 a year, the tenant is a company, or the property is not the tenant's only or principal home.
- Deposits do not have to be protected in a statutory scheme, though they can be; eviction still needs a notice to quit and a court order under the Protection from Eviction Act 1977.
- Since 1 May 2026 the Renters' Rights Act 2025 has abolished fixed-term ASTs and Section 21; PBSA can keep fixed terms only via membership of the specified ANUK/Unipol code.
How Cloudfox Helps With Common Law Tenancy
For a PBSA or BTR operator, tenancy type is no longer a back-office detail. Code membership and the right tenancy structure now decide whether you can run academic-year fixed terms and the rebooking cycle at all. We set up HubSpot and your PMS so tenancy type, code-compliance status, deposit handling, and the booking lifecycle are modelled correctly from the start, and your commercial and finance systems reflect the legal reality rather than working around it.
Frequently Asked Questions About Common Law Tenancy
Is a PBSA tenancy an assured shorthold tenancy?
Not where the provider qualifies for the student-accommodation exemption. A commercial PBSA provider that is a member of the specified ANUK/Unipol code can let on fixed-term common law tenancies outside the assured regime. Without that code membership, tenancies fall under the assured periodic regime introduced on 1 May 2026.
Do I need to protect a deposit on a common law tenancy?
No. The statutory tenancy deposit protection duty applies to assured shorthold tenancies that started after 6 April 2007, not to common law tenancies. You may still protect the deposit voluntarily, and many operators do for dispute-resolution comfort.
Can PBSA still use fixed-term tenancies after the Renters' Rights Act?
Yes, but conditionally. The exemption that allows fixed-term student lettings outside the assured regime depends on the provider being a member of the approved code specified for that route. It is not retrospective: tenancies granted before 1 May 2026 converted to assured periodic tenancies.
When is a tenancy a common law tenancy rather than an AST?
In England, most often when the annual rent is above £100,000, the tenant is a company, or the property is not the occupier's only or principal home. Holiday lets and certain low-rent arrangements also sit outside the assured regime.