At common law, a tenancy ends by common law method by expiry of fixed term, service of a notice to quit, forfeiture of lease or surrender. Built upon common law are various statutory protections giving security of tenure to tenants. Under the various statutes, tenants have a right to stay on at the end of the lease until the landlord have a statutory ground for possession.

The statutes which gives security of tenure to tenants are:

The Rent Act 1977: Protects private sector residential tenants whose tenancy was granted before 15^th January 1989.
The Housing Act 1988: Protects private sector residential tenancies granted after 15th January 1989.
The Housing Act 1985: Protects public sector tenancies.

Business tenants are protected by Part II Landlord & Tenant Act 1954.

Agricultural tenants are protected by the Agricultural Holdings Act 1986 and Agricultural Tenancies Act 1995.

Protects private sector residential tenants whose tenancy was granted before 15^th January 1989.

Landlord must have ground for possession to remove tenant after the term
The tenant can apply for a fair rent
The tenant’s spouse or relative can succeed to the tenancy on death

However, the Rent Act was thought to deter landlords from letting.

Protects private sector residential tenancies granted after 15th January 1989.

The Housing Act 1988 was introduced and the effect therefore was to deregulate the market. It was not retrospective in effect, thus there are two (2) distinct legislative codes – RA 1977 and HA 1988.

Each code has a distinct set of categories into which the tenancy might fall:

RA 1977: Protected Tenancies

Statutory Tenancies

Restricted Contracts

HA 1988: Assured Tenancies

Statutory Protected Tenancies

Assured Shorthold

Much of the history associated with all legislation pre-1998 Act was essentially covering rent control and protected tenancies but it was argued that this had led to badly managed properties as people received little return for their capital investment and had limited opportunity to get their properties back as and when they wanted. The 1988 Act sought to do away with much of the rent control and protected tenancy status. Security of tenure was still provided under the assured tenancy basis but the significance of this was undermined by the ability of the landlord to create assured shortholds.

These now dominate the market – in 1990 the first year of the 1998 reforms only 8% of market assured shorthold in 2001 that was 56% and now even more and now only 2.2% of the market is governed by 1977 Act tenancies.

Substantially removed security of tenure

It created the AST, under which the tenant has no right to stay on the end of the tenancy.

Created the Assured Shorthold Tenancy
Increased rights of possession for assured tenancies

The tenant has a right to stay on after the end of the lease until the landlord has a statutory ground for possession. The HA 1988 increases the grounds for possession

Limited rent control

Landlords can now charge a market rent

Limited succession rights

When is a tenant an Assured Tenant under the Housing Act 1988?

Assured Tenancy Definition – HA 1988 s1:

The Dwelling House is let as separate dwelling;
The tenant is an Individual, not company; and
The tenant occupies the premises as their only or principal home.

By s45 HA 1988, a dwelling house can be a house or part of the house, will include a flat or rooms within a flat or house or perhaps even a hotel.

In Uratemp Ventures Ltd v Collins and Carrell [2002] 1 AC 301, HL held that in order to be a dwelling house, there do not need to be cooking facilities. A proper bed sit could be dwelling house in itself. Also, a dwelling house could be one (1) room in a hotel with or without cooking facilities.

Lord Millet held:

“ in both ordinary and literary usage, residential accommodation is a dwelling if it is an occupier’s home. It is the place where he lives, and to which he returns and which forms part of the centre of his existence. Just what use he makes of it when he lives there depends on his mode of life. No doubt slleo there and usually eat there, he will often prepare some of his meals there but his home is no less his home just because he does not cook there but prefers to eat out or bring in ready meals – never been a legitimate requirement that cooking facilities must be available for premises to qualify as a dweliing”

In Chelsea Yacht and Boat Co Ltd v Pope, it was held that a mobile houseboat, which could be moved easily, was not a fixture in land law, it was a chattel, therefore, it could not be a subject of an assured tenancy. Assured tenancy has to be a tenancy of land.

Sch 1 HA 1988 – NOT Assured tenancy if:

High rateable value

Exceeding an annual rent of 25,000 where the tenancy was granted after 1^st April 1990.

In 2010, the limit was increased, if the rent was over 100,000 a year, the tenancy is not covered by the Housing Act 1988.

No rent or very low rent

1,000 or less a year in London, or 250 a year outside London, if the tenancy was granted after 1^st April 1990

Business, licensed or agricultural
Student let by educational institution
Holiday let
Resident landlord (schedule1 para 10 and Part III)

If the landlord is resident with the tenant in the same building, the tenancy is not covered by the Act. If it’s a purpose built block of flats and the tenant lives in one flat of the building and the landlord lives in another part of the building, that is not a resident landlord.

If it’s an old conversion (conversion of an old buildings), and the landlord lives in another conversion of the building, that is a resident landlord.

The landlord must continue to occupy for duration of tenancy, if they cease to do so, the tenant will get protected status.

Landlord is crown or public body
Tenancy is granted by a private landlord as accommodation for asylum seekers

HA 1988 s20:

1. Tenancy must qualify as Assured Tenancy

2. Must be for at least 6 months

3. Landlord must serve notice in prescribed form stating it will be assured shorthold

s19A: Automatically Assured Shorthold Tenancy unless (sch 2A):

Notice served by landlord confirming not AST
Tenancy says not AST
Tenant prior to tenancy was AT

Any new tenancy given after will also be a fully assured tenancy and cannot be downgraded to an assured shorthold tenancy.

NB: The pre-tenancy notice requirement has been abolished, and there is no longer any requirement that the tenancy must be for a fixed term of at least six (6) months

s20B – Demoted assured shorthold tenancies where the landlord is a registered social landlord.

s21: On termination of an assured shorthold, the landlord can obtain possession and the tenant will have no security of tenure, provided that:

Term of the tenancy expired (contractual);
Two (2) months notice in writing given by landlord that they require possession;

Which can be given before or after the expiry of the term

The landlord takes Court proceedings;
The landlord can then obtain possession under the accelerated possession procedure.

NB: However, in the case of an assured shorthold granted after 28th February 1997, the possession order cannot take effect earlier than six months after the start of the original tenancy: s.21 (5).

Relationship with law on Tenant’s Deposit

The landlord cannot serve a s.21 notice if he has not complied with the law on protection of the deposit
See Housing Act 2004 ss212-215, as amended by Localism Act 2011 s.184

There are certain statutory rules requiring the landlord to protect the tenants deposit in one of three statutory schemes within thirty (30) days of receiving deposit. If the landlord does not comply with this, as a penalty, they cannot terminate the assured shorthold under s21.

Moreover, under HA 2004 as amended by LA 2011, the landlord may also be liable to repay the deposit and a penalty three times (3x) the deposit.

If term expired, the landlord can use the accelerated possession procedure in Part 55. A landlord can get possession quickly, usually without a hearing, with the judge being satisfied on paper that it was an assured shorthold and that two (2) months notice has been given once the term has expired then the judge can order possession under this accelerated procedure (Claim form N5B; Defence form N11B). The tenant can apply for a hearing if there is some dispute on the legality of the procedural, whether it was an assured shorthold or whether correct notice was given.

Although the judge usually orders possession within fourteen (14) days, they do have discretion under s89 HA 1980 to allow the tenant to stay for up to six (6) weeks in the case of exceptional hardships. The tenant can apply for a...

#14787 - Assured Tenancies - BPC Property and Chancery

About Oxbridge

More Bpc Property And Chancery Samples