Education student accommodation e-briefing - termination and permanent possession

• United Kingdom

• Education

19-11-2018

Welcome to the ninth in our series of student accommodation e-briefs for universities, colleges and private providers. These e-briefs highlight aspects of the student accommodation agreement which pose challenges for the education sector.

In our last briefing we considered some issues surrounding an institution’s ability to include within the accommodation contract rights to relocate a student or temporarily suspend his/her occupation.

In more serious situations, however, the circumstances may warrant termination of the accommodation contract outright. In this briefing we look at the key considerations if an institution wants to take such a step.

Institutions may, for example, wish to terminate the contract:

• following a finding of serious misconduct; or
• in the case of a mental health concern where a student is considered to present a serious risk to themselves or to others; or
• where there have been persistent breaches of the terms of the accommodation agreement e.g. unpaid accommodation fees or damage caused to the accommodation.

Notice

When an institution elects to suspend or terminate an accommodation contract then it should do so on reasonable notice and the contract should specify what notice will be given.

The Protection from Eviction Act 1977 requires a minimum of 28 days’ notice to be given to terminate an accommodation agreement which is a tenancy or a periodic licence. However, if the student accommodation agreement is a fixed term licence then there is no statutory prescribed minimum notice period.

As discussed, in earlier e-briefs in the series, but to recap, whether a contract is a tenancy or a licence will be a matter of form and substance. As a matter of legal principle the main difference between the two is that a tenancy confers a right to exclusive possession of a defined area (or in this case room). In contrast a licence does not. Rather, a licence is a personal right to occupy. Clauses in contracts which allow a student to be relocated, or for the institution’s staff to enter the room without notice (albeit usually notice would be given) are consistent with a licence relationship. What matters equally is what is going on in reality. If in practice a student is never moved and has exclusive control of his/her area there could be an argument that in reality a tenancy exists regardless of terminology. It is important therefore that, as well as reserving those sort of rights in the contract, the institution can demonstrate that from time to time it might exercise them.

So, for all tenancies, a minimum 28 days’ notice must be given to terminate. As for a licence, if it is granted on a rolling or month to month basis, then it will be a periodic licence and will also require a minimum 28 days’ notice to terminate. However, if a licence is granted for a fixed term, so by reference to a particular period e.g. an academic term or calendar year, then it can be terminated on less than 28 days’ notice as there is no statutory minimum.

Aside from whether the Protection from Eviction Act requires a specific period of notice, the consumer law framework also imposes an obligation on the institution to act fairly. Providing the contract can be properly characterised as a fixed term licence though, there are no other statutory constraints upon the period of notice. In sufficiently serious situations therefore termination on less than 24 hours’ notice might be warranted.

How to Exercise the Right to Remove a Student

When an institution is serving notice on a student to terminate their contract (or indeed relocate or suspend as we discussed in our last briefing), then it should consider serving the notice by hand, as opposed to just by email or in the post. That way, the institution’s representatives can have a direct conversation with the student to make sure they understand the effect of the notice and address any concerns upfront.

Reaching agreement as to the timing of the student’s departure will always be the preferred approach if it is achievable. No matter how well drafted or reasonable the terms of the accommodation contract may be, ultimately following service of a notice, if the student refuses to leave the accommodation then the institution cannot physically remove the student without a Court Order. That principle applies to all accommodation contracts, whether it is a tenancy or a licence and regardless of the length of notice given to terminate the contract.

If the student does refuse to leave then in usual cases, the Court process can take a number of weeks (if not months) to reach a conclusion – with all the legal costs that will entail. That Court process involves an application to Court for an Order for Possession and a hearing will be listed to take place -usually within a number of weeks. In order to be successful the institution will need to evidence (i) that the right to terminate has arisen and (ii) that the agreement has been properly terminated in line with the applicable contractual provisions. Even if the Court proceedings are successful, if the student does not vacate voluntarily at that stage then removing the student will involve instructing bailiffs to carry out a formal eviction, and could in some cases prompt publicity including unfavourable social media commentary.

If the circumstances leading to the institution requiring the student to leave their accommodation are sufficiently serious (e.g. there is a real threat to their safety or that of others or damage to property), then it may be possible to secure an urgent Court hearing, say within 24 hours.

The starting point for being able to successfully recover possession though is to ensure that the accommodation contract contains the right provisions to permit the student’s occupation to be brought to an end. The next stage is to ensure that the circumstances of the case come within the scope of the institution’s contractual rights. So too to consider whether the agreement is of a type which requires at least 28 days’ notice to be given - or not (that is, whether it is a tenancy or a periodic or fixed term licence). Finally the process of serving notice and getting the paper work ready for a Court hearing should be carefully undertaken to ensure all the legal requirements for possession are met. Following a careful process is the best way to achieve a successful outcome in the shortest possible time.

How we can help

Eversheds Sutherland has a wealth of experience advising on student accommodation issues in the higher and further education sectors. If you would like to discuss how Eversheds Sutherland may assist you in managing any of the issues addressed above (or any other student contract/consumer related issues) please contact us.