Licence to occupy vs tenancy: what is the difference?

The distinction between a tenancy and a licence to occupy is one of the most important in housing law. It determines what legal protections you have, whether you can be evicted without a court order, and whether you can bring a disrepair claim against whoever is responsible for your accommodation. Below, we set out the difference and how to work out which you have.

Why does it matter?

If you have a tenancy, you have statutory security of tenure. Your landlord cannot evict you without going through the courts. You are protected by Section 11 of the Landlord and Tenant Act 1985, which requires the landlord to keep the structure and heating in repair. You have the full range of housing rights, including the right to bring a disrepair claim.

If you have a licence to occupy, you have fewer protections. A licence can be ended by giving you reasonable notice, without needing a court possession order (in most cases). You are not automatically protected by Section 11. You may still have some rights, a duty of care, and protection from harassment and illegal eviction, but they are more limited.

What is a tenancy?

A tenancy is a legal interest in land. It gives you the right to exclusive possession of the property for a defined period or until the tenancy is lawfully ended. The key characteristic is exclusive possession, the right to exclude even your landlord from entering without your permission (subject to the landlord's right of access on proper notice for repairs).

Most agreements with private landlords, housing associations, and councils where you have your own front door, your own space, and control over who comes in are tenancies, regardless of what the agreement calls itself.

What is a licence to occupy?

A licence is permission to be in a property. It does not give you a legal interest in the land or exclusive possession. Common situations where you may have a licence rather than a tenancy include:

• Living with a family member or friend who owns or rents the property, you are likely a licensee unless there is a formal agreement
• Service occupancy, where your housing comes as part of your job and you must leave the property when the job ends
• Hostel accommodation, where a member of staff or management retains access and control, and residents do not have exclusive use of their individual space
• Tied accommodation, housing provided by an employer as part of employment
• Holiday accommodation, accommodation let for genuine holiday purposes
• Resident landlord situations, where you share accommodation with your landlord and they live in the same building (in some cases)

Can a landlord call a tenancy a licence to avoid your rights?

No. The legal character of an agreement is determined by what it actually involves, not by what it is called. This is established by the case of Street v Mountford (1985), in which the House of Lords held that if an agreement gives you exclusive possession of a property for a defined period in return for a payment, it is a tenancy, even if the document calls it a licence.

Landlords and accommodation providers sometimes try to use the word "licence" to avoid their obligations. Courts look at the substance of the arrangement, not the label.

How do I know which I have?

Ask these questions about your living situation:

1. Do you have a defined space that is yours alone? If you have your own room, flat, or house and you control who enters it, this points toward a tenancy.
2. Do you pay a regular payment in exchange for occupying the space? Regular payments for the right to be there point toward a tenancy.
3. Does your landlord or the accommodation provider retain the right to move you to a different room at will? The ability to move you arbitrarily is a sign of a licence.
4. Do you share facilities with staff or management who retain access? This points toward a licence.
5. Does your accommodation come with personal services, meals, cleaning, that are central to what you are paying for? This may indicate a licence.

If you are unsure, take advice. Getting this wrong can affect your ability to claim rights you are entitled to.

Disrepair rights for licensees

If you hold a licence, you cannot bring a Section 11 disrepair claim in the same way as a tenant. However:

• You still have a right not to be subjected to conditions that are dangerous or hazardous to health
• Environmental health can still inspect and require the accommodation provider to act
• If you live in a local authority hostel or supported accommodation managed by a housing association, the Regulator of Social Housing and the Housing Ombudsman may be relevant
• If you believe you actually have a tenancy despite being told you have a licence, take advice, the courts have the power to determine the true nature of your arrangement

Call us on 0800 030 4669 if you are unsure about your situation and want advice.

Sources

• Section 11, Landlord and Tenant Act 1985 (legislation.gov.uk)
• Protection from Eviction Act 1977 (legislation.gov.uk)

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• What is the difference between council and housing association?
• Assured tenancy vs assured shorthold tenancy
• Renting without a written tenancy agreement
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