Unoccupied rented properties - who is liable?
Section 6 of the Local Government Finance Act 1992 sets out who is liable for the Council Tax and where there are no residents, the owner is liable. However it defines owner in this context as follows:
"owner", in relation to any dwelling, means the person as regards whom the following conditions are fulfilled -.
- he has a material interest in the whole or any part of the dwelling; and
- at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;
'Material interest' is defined as "a freehold interest or a leasehold interest which was granted for a term of six months or more".
So what happens if a tenant moves out before the end of their tenancy agreement?
A tenant with a fixed-term tenancy for six months or more holds a material interest as defined above, and if they move out before the end of their tenancy, they are liable for unoccupied charges until their tenancy end date.
A tenant on a statutory periodic tenancy after a fixed term does not have a material interest as defined above, and therefore cannot be held liable for any unoccupied charge due. In that instance, the landlord becomes liable for council tax for any period that the property becomes no one’s main residence until the tenancy ends. This is irrespective of whether the tenant has to give a notice period, or indeed handed the keys back
The exception to the above rule is where the original fixed term tenancy continues as a contractual periodic tenancy, then the tenant continues to 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. In such circumstances, the Council will require a copy of the original tenancy agreement in order to determine the correct liability for Council Tax.
What's a periodic tenancy?
Once a tenant's fixed term tenancy expires, if they stay on without a new fixed term tenancy being drawn up then their tenancy becomes a periodic or rolling one, which means they no longer hold a material interest in the property. So although they can be charged for the period they are living in the property, they cannot be charged for any unoccupied Council Tax charges if they move out, even if they haven't given the landlord notice in accordance with their tenancy agreement.
Is there any legal case which backs this up?
There are a number of High Court cases which have determined such matters:
In MacAttram v London Borough of Camden the judge stated that fixed term and periodic tenancies cannot be joined together to make one total tenancy period of over six months. Instead of being a continuation of the original tenancy, the tenancy becomes a new periodic tenancy and so the tenant cannot be regarded as holding a material interest in the property from the start date of that new periodic tenancy.
Leeds City Council v Broadley dealt with the circumstances where an assured shorthold tenancy contained a clause that the tenancy continued as a contractual periodic tenancy. The original tenancy term then continues on a monthly basis until a break notice is served by either party, so the term is constantly being extended without creating a new tenancy.