These are tenancies fall outside the scope of statutory rules unlike Assured Tenancies (AT) which also include Assured Shorthold Tenancies ASTs.
In the case of a common law residential tenancy, the tenant's rights are mainly dependent on the terms of the agreement, and therefore similar to a commercial lease, they are contractual or "non-statutory contractual tenancies" as opposed to those being regulated by parliamentary law.
Any residential tenancy where the rent equates to an annual rate in excess of £25,000 p.a. (set in 1990 and not increased since at this time of writing - November 2008) is excluded from the Housing Acts 1988 and 1996 (AT or AST) rules and therefore must be a common law tenancy.
A rental rate of £25,000 pa may seem quite a lot, but this also applies to join tenancies where the combined rent of all the sharers (such as students) is included in this total - £2083.33 per month is the limit.
Many student properties therefore exceed this limit which means the joint tenancy is a common law tenancy and is therefore outside the scope of the Housing Acts 1988 and 1996.
The implications here for common law tenancies are: (1) a different tenancy agreement from the usual AST will be required, and (2) any deposit taken is not subject to the requirements of the Deposit Protection Scheme under the Housing Act 2004.
Stamp Duty or Stamp Duty Land Tax (SDLT) as it's now called, is not payable unless the the lease Nat Present Value exceeds the SDLT threshold - currently £125,000. Below this threshold, the vast majority of private tenancies escape SDLT.
Common Law Tenancies do not afford tenants the same protection regarding security of tenure and statutory continuation as do Assured Tenancies (including Shorthold Assured Tenancies).
Therefore the AST section 21 and section 8 procedures do not apply, and the letting operates on the literal wording of the Tenancy Agreement. Similarly, the Deposit Protection (DPS Scheme) rules do not apply. However, the Protection from Eviction Act 1977 still applies.
With an Assured Shorthold Tenancy (AST) the landlord is entitled to a possession order at the end of a tenancy fixed-term if he has correctly served 2 months' notice by way of a s.21 notice. In the case of a breach of contract during the fixed-term the landlord would need to prove at least one or of the prescribed reasons (grounds for possession) laid down in Housing Acts 1988 and 1996 by way of a s.8 notice. To evict successfully under s.8 the landlord must obtain a po session order and therefore he can evict before the end of the tenancy fixed-term - usually 6 months.
With a Common Law tenancy the landlord is entitled to possession at the end of the fixed-term, and is not required to serve a notice to quit to bring the tenancy to an end.
Also, during the tenancy the landlord can bring the common law tenancy to an end where there has been a breach of any of the specified terms in the tenancy agreement. He is not restricted to the prescribed terms (grounds) laid down in Housing Acts.
A residential common law tenant still has some statutory protection in that they cannot be evicted against their will unless their landlord obtains a court order (Protection from Eviction Act 1977).
Common Law Tenants will also get protection under the Unfair Terms in Consumer Contracts Regulations 1999 where they have entered into a standard form (pre-printed) tenancy agreement. They will also benefit from some other statutory provisions including the landlord’s repairing obligations under the Landlord and Tenant Act 1985.
