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How to ensure your tenant is liable for council tax at the end of term

You may have seen a recent council tax case where it was shown that a tenancy which continues as a contractual periodic tenancy, will hold the tenant liable for the council tax on an empty property until the tenancy is brought to an end by proper notice given by the tenant.

However, that case wasn’t an AST (assured shorthold tenancy) so, although useful, it wasn’t perfect for the needs of most landlords.   

The Law

Where the property is unoccupied, the hierarchy provides that the “owner” is liable. “Owner” is defined as the person who has the inferior material interest which includes a leasehold interest of 6 months or more. (NB. this is for AST’s within single lets, NOT a HMO, for a HMO, currently within our area (Cheshire East, Crewe) the landlord is responsible. It has been held that where a tenancy goes statutory periodic after a fixed term, this is not a material interest for this purpose because a monthly statutory periodic tenancy which arises upon expiry of a fixed term is not of at least 6 months. Where a tenancy continues as a contractual periodic tenancy, the original fixed term is what matters here… As long as that was for at least 6 months or more, the tenant will have the inferior material interest in the property where they vacate without giving proper notice or, if they do give proper notice but vacate early. Crucially, it depends on whether the AST goes statutory or contractual periodic at the end of the fixed term. In order to ensure the tenant remains liable during any periodic term, the following criteria must be met:
  • the initial fixed (or minimum) term must be at least 6 months or more, and
  • the tenancy agreement must contain a term that it continues upon expiry of the term.
Ultimately, we strongly recommend that you know your rights, whether that is as a landlord or a tenant, and don’t get caught out! Amplo are a member of the RLA, and having recently attended one of their courses on HMO & Lettings Management, these courses truly are invaluable to assist your knowledge, should you ever come face to face with a case like this.

The Law

Where the property is unoccupied, the hierarchy provides that the “owner” is liable. “Owner” is defined as the person who has the inferior material interest which includes a leasehold interest of 6 months or more. (NB. this is for AST’s within single lets, NOT a HMO, for a HMO, currently within our area (Cheshire East, Crewe) the landlord is responsible. It has been held that where a tenancy goes statutory periodic after a fixed term, this is not a material interest for this purpose because a monthly statutory periodic tenancy which arises upon expiry of a fixed term is not of at least 6 months. Where a tenancy continues as a contractual periodic tenancy, the original fixed term is what matters here… As long as that was for at least 6 months or more, the tenant will have the inferior material interest in the property where they vacate without giving proper notice or, if they do give proper notice but vacate early. Crucially, it depends on whether the AST goes statutory or contractual periodic at the end of the fixed term. In order to ensure the tenant remains liable during any periodic term, the following criteria must be met:
  • the initial fixed (or minimum) term must be at least 6 months or more, and
  • the tenancy agreement must contain a term that it continues upon expiry of the term.
Ultimately, we strongly recommend that you know your rights, whether that is as a landlord or a tenant, and don’t get caught out! Amplo are a member of the RLA, and having recently attended one of their courses on HMO & Lettings Management, these courses truly are invaluable to assist your knowledge, should you ever come face to face with a case like this.