A lettings agent raised questions on social media after displaying rental listings on Zoopla and Rightmove showing tenancy fees.

However, both properties are exempt from the tenant fees ban.

Orchard & Shipman, which has operated since 1988 and has offices across the UK, was questioned on Twitter by Giles Peaker, partner at Anthony Gold Solicitors, as well as by landlords and other agents, about the legality of the listings.

However, on offer are Crown tenancies which are not subject to the ban as they are not Assured Shorthold Tenancies.

The agent, a member of ARLA Propertymark and The Property Ombudsman, responded to concerns raised by Peaker and others on Twitter and said these were common law tenancies.

There are exemptions to the fee ban for non-Housing Act tenancies, social housing and holiday accommodation, and Peaker initially queried whether any of these exemptions to the AST regime would apply.,

However, a  spokesperson for ARLA Propertymark told EYE that the listings are lawful, stating: “We can confirm that these will be lawfully created common-law tenancies but must highlight that they can only be used in the specific circumstances detailed within the Act and are therefore not a way for agents to try and get around the requirements of the tenant fees ban.”

Peaker told EYE that after undertaking further research of Crown records it appears that the Ministry of Defence (MOD) owns the freehold to the properties.

A statement to EYE from Orchard & Shipman said: “These properties, managed by Orchard & Shipman, are managed for the MOD on common law tenancy agreements and are not subject to the changes in tenant fee legislation.

“Notwithstanding, we are working with our client to adjust our offering to bring them in line with market practices and we expect an announcement shortly.

“Our client has an interest in providing well serviced, affordable properties to the market that are attractive to potential tenants. These properties are part of the successful MOD sub-let programme that supports increased investment in MOD housing for Service personnel and assists with releasing some of the pressures on the UK civilian housing market.”

One on Zoopla advertises a three-bed property for £725 a month in Ipswich.

Another listing, on Rightmove, offers a two-bed semi-detached for £625 a month in Devon.

Both displayed charges including a set-up fee of £300 and state that “the tenancy agreement for this property is exempt from the tenant fee ban”.

Hi @OrchardShipman I'm curious about your 'Non Housing Act' tenancies, which you also call 'Non Assured Shorthold Tenancies', the ones that you are charging tenant fees on. Can I ask a question? pic.twitter.com/9Reky0B0HG

— Nearly Legal (@nearlylegal) August 27, 2019

Thx for your message. The tenant fee ban only applies to Assured Shorthold Tenancies & Licence to Occupy agreements. Some of our properties are on a Common Law Tenancy therefore exempt from the fee ban. If you'd like any more info happy to provide- Kind regards O&S

— Orchard & Shipman (@OrchardShipman) August 28, 2019

Update on the @OrchardShipman ‘common law tenancies’ and tenant fees thing. After some digging, it appears that the listed properties have the Ministry of Defence as the immediate landlord (complicated sale and lease back stuff going on, but still MoD as immediate landlord).

— Nearly Legal (@nearlylegal) August 28, 2019

Below, the properties where tenants’ fees are being charged.