Assured Shorthold Tenancies and Possession

Assured Shorthold Tenancies

  • All tenancies granted after 22 February 1997 are automatically be assured shorthold tenancies unless otherwise agreed between landlord and tenant
  • Assured shorthold tenancies are the least secure tenancies.
  • Landlord can easily acquire the possession of premises after the fixed term of the tenancy
  • Provides a landlord simple process to regain the possession of the property on a short notice
  • Landlord has to apply to court to obtain a court order for possession before evicting a tenant, where tenant has stayed on after the end of fixed term without the consent of Landlord

Characteristic of Assured Shorthold Tenancy

A tenancy will be shorthold tenancy

  • If it is granted after 28th February 1997, unless otherwise agreed
  • The tenancy must be for at least six months’ time period. There is no upper time limit on the duration of the tenancy. An assured tenancy can last for a long-time period
  • An assured tenancy can be periodic tenancy or a fixed term tenancy
  • Landlord does not hold any power to end the tenancy before six months
  • A tenant of Assure Shorthold Tenancy can ask for a review of rent to a rent assessment committee to have their rent reduced. Such application can only be made during the fixed term. Once the fixed term is expired and tenant is holding over by virtue of Assure Shorthold Periodic Tenancy, the tenant cannot exercise such right
  • A notice of short hold tenancy to a tenant is required under the Housing Act 1998 and Section 20(2).

Housing Act 1998 and Section 20(2)

The notice referred to in subsection (1)(c) above is one which—

(a)  is in such form as may be prescribed;

(b)  is served before the assured tenancy is entered into;

(c) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the   tenant under that tenancy; and

(d)  states that the assured tenancy to which it relates is to be a shorthold tenancy.

Assured Tenancy converted into Assured Shorthold

If a tenant had an assured tenancy before 28th February 1997, and upon the expiry of the assured tenancy the tenant was granted a new tenancy but Assured Shorthold instead of Assured tenancy, by the same landlord. The new tenancy assured shorthold tenancy will not be valid and the tenant will still retain the old Assured Tenancy provided it is the same landlord

Example

Martin was awarded Assured Tenancy by Wimpy Builders in 1994 and the tenancy was renewed in 1999 by Wimpy builders as an “assured shorthold tenancy”. This will be void and Martin was still an Assured Tenant.

However, if a tenant had an assured shorthold tenancy before 28th February 1997, and upon the expiry of the tenancy, the tenant was granted a new Assured Shorthold Tenancy by the same landlord. The new tenancy assured shorthold tenancy will be valid.

Example

Martin was awarded Assured Shorthold Tenancy by Wimpy Builders in 1994 and the tenancy was renewed in 1999 by Wimpy builders as an “assured shorthold tenancy”. This will be a valid tenancy

Succession of Assured Tenancy

  • Where a person (other than spouse) succeeds to a Rent Act Tenancy, that person will acquire Assured Tenancy rather the Rent Act protected tenancy
  • Where a former secure tenant acquires an assured tenancy, that tenant will acquire Assured tenancy, not the Assured Shorthold
  • On the Expiry of a long residential lease and where a leaseholder acquires the right to an assured tenancy at the expiry, the new tenancy will be Assured Tenancy
  • An Assured Tenant, who immediately before the grant of a tenancy held an assured tenancy from the same landlord, that tenant will acquire an assured tenancy, even where the new tenancy is of a different property
  • Where a tenant has a fixed term assured tenancy, on the expiry of fixed-term a statutory periodic tenancy will arise. The new statutory tenancy will be Assured Tenancy in nature

Recovery of Possession (Assured Shorthold Tenancy)

  • Under Assured Shorthold tenancy a landlord can gain the possession of his/her property easily after the expiry of fixed term.
  • A landlord does not have to prove any grounds set out in the Housing Act 1988, Schedule 2. Unlike, Assured Tenancy where a landlord has to prove a ground or grounds for a possession)

Fixed Term and Section 21 Notice

  • At the expiry of the fixed term of an Assured Shorthold Tenancy, a landlord must serve a notice under Section 21(1) of Housing Act 1988, often referred as Section 21 Notice
  • It provides that on or after the expiry of a fixed term of an assured shorthold tenancy the court will make an order for possession provided it is satisfied with the fact that the tenancy has come to an end, no further assured tenancy is granted, other than the periodic assured tenancy

Periodic Assured Shorthold Tenancy

Upon the expiry of a fixed term of an assured shorthold tenancy, it will transfer into periodic assured shorthold tenancy

Example: Ali was granted 12 months’ shorthold tenancy, on the expiry of fixed term (twelve months) and in the absence of a new tenancy agreement, the fixed term tenancy will become periodic shorthold tenancy automatically

 

  • The landlord must also serve a written notice upon a tenant which must not be less than two months. The notice must state that the landlord requires the possession of the dwelling-house
  • An order for possession of a shorthold tenancy cannot be made earlier than 6 months after the beginning of the tenancy
  • The two months’ notice time period must expire be expired in order to recover a possession
  • The time period of a notice of possession is 6 months but only where the landlord is registered provider of social housing in England and the tenancy is granted after 1 April 2012 for a fixed period of more than two years and the landlord wants to gain possession at the end of the fixed term. This provision does not apply to private landlords and their tenants

Section 21 Housing Act 1988

Recovery of possession on expiry or termination of assured shorthold tenancy.

(1)  Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a)   that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not) and

(b)  the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.

Period of Tenancy under Section 21(4)

  • The court can also make a possession order for a dwelling house which has been let on Assured Shorthold Tenancy under Section 21(4) of Housing Act 1988 as well
  • The relevant period of tenancy is defined by the period agreed for the payment of rent under the original tenancy, which could be weekly, monthly, quarterly or yearly. Thus, a yearly tenancy can be described as a periodic monthly tenancy after the expiry of the fixed term, if the rent under the original tenancy is paid monthly
  • Or a weekly periodic tenancy, where the rent is paid weekly.
  • An extra notice must be given in respect of quarterly or yearly tenancies, quarterly periodic tenancies are those where the rent is paid quarterly and yearly periodic tenancies are those where a rent is paid yearly but the fixed term has expired and the assured shorthold tenancy is now converted into, weekly, monthly, quarterly or yearly periodic short hold tenancy, for a quarterly periodic tenancy the time period for a notice is three months

Section 21(4) of Housing Act 1988

Without prejudice to any such right, as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—

(a)  that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and

(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.

Possession Orders

Where a court is satisfied that an appropriate notice under section 21 is provided to a tenant it will make. The courts do not generally postpone the date of possession for more than 14 days unless there are exceptional circumstances in which case the possession date can be postponed for up to 6 weeks

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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