Assured Tenancy and Possession

Assured Tenancy

Assured tenancy and assured shorthold tenancies were introduced by Government under Housing Act 1988. They were aimed to replace the

  • Rent Act 1977 protected tenancies in the private sector, and
  • Housing Act 1985 secure tenancies in relation to housing association tenancies

The Act became applicable from January 15, 1989. The primary purpose of the Government was to reduce regulation in the private rented sector. Assured tenancies offer significantly reduced the security of tenure to private sector tenants as compared to Rent Act 1977 and new housing association tenants. Assured shorthold has much less security than fully assured tenancy and is now the most common form of letting in the private sector.

Characteristics of Assured tenancies

Under Housing Act 1988 Section 1; A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this act an assured tenancy if and so long as

  1. the tenant or, as the case may be, each of the joint tenants is an individual; and
  2. the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and
  3. the tenancy is not the one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.

Essential Elements

  • There must be a tenancy first (no licences or another arrangement). The tenancy can be for a fixed term or it can be a periodic The tenancy can also be a sub-tenancy or an agreement for a tenancy
  • There must be a dwelling-house. A dwelling house may include a house in itself or a part of a house. It can be a flat, a single room within multi-occupied house or even a static caravan
  • The house which is let must be let as a separate dwelling at a quantifiable rent. In the absence of a quantifiable rent, it will be excluded as a separate dwelling house
  • The house must be let as a separate dwelling house. To be a separate dwelling the house must also be sufficient for a tenant to carry out the major activities of the life. It is important to note that lack of cooking facilities or where a person does not cook at home will not affect the status of a house as a separate dwelling house
  • The Tenant must be an individual, which implies that the tenant must not be a company or any other artificial person. (A company or an artificial person may not be able to fulfil all the conditions of an assured tenancy)
  • The tenant must occupy the dwelling-house as his/her only or principal home. He/she must use the house as his residence and it is a question of fact.
  • A dwelling house will qualify as only or principal home, where a tenant sleeps, eats, comes back from work and enjoys the house a permanent residence.

Non-Assured Tenancies

  • Any tenancy entered before 15th January 1989
  • Tenancies of dwelling houses with higher rateable values and the rent payable is more than £100,000 per annum
  • Tenancies with extremely low payable rent, less than £1000per annum in London or less than £250 rent per annum elsewhere.
  • Business tenancies are excluded from acquiring the status of assured tenancies
  • Licensed premises for the sale of intoxicating liquors for the consumption on the premises cannot be assured tenancies
  • A dwelling house with more than two acres of an agricultural land can also be not an assured tenancy
  • A dwelling house with less than two acres of an agricultural land cannot be assured tenancies, where the purpose of a let is not to provide the tenant with a home

Important

A dwelling-house let together with another non-agricultural land, even where it is more than two acres can be an assured tenancy.

  • Agricultural holdings under Agricultural Holding Act 1986 cannot be assured tenancies
  • Letting to students and holiday lettings cannot be assured tenancies
  • Where there is a resident landlord, such property cannot be assured tenancy, unless the building is purpose-built block of flats and tenant occupies a flat which forms part of one of the purpose-built building

Example 1: Ali took flat 2 for a rent from Martin who is the owner of flat 2 but he also lives in the same block of flats at flat number 10. Ali’s tenancy can qualify as an assured tenancy

Example 2: Ali took flat 2 for a rent from Martin who is the owner of flat 2 but also lives in the same flat. Ali’s tenancy cannot qualify for an Assured Tenancy

  • Crown tenancies cannot be assured tenancies
  • Local authority’s tenancies, including a county council, a district council, a London borough, City of London, the Inner London Education Authority, a joint authority or to various other bodies, including the Commission for the New Towns, a development corporation, a fully mutual housing Association or a housing action trust, are not assured tenancies.
  • Family intervention tenancies cannot be assured tenancies
  • Houses for asylum seekers will not qualify as an assured tenancy

Family Intervention Tenancies

Family intervention tenancies are designed to address the behavioural problem of the persistently anti-social tenant. Social landlords have to accommodate the families which have lost their previous accommodation due to the anti-social behaviour of one or more members of the household. Instead of evicting the whole family social housing landlords can offer non-secure tenancies to tenants who have lost or in danger of losing their secured or assured tenancies.

Security of Tenure (Assured Tenancy)

Under assured tenancy, a landlord can only obtain the possession of the premises by executing a court order for possession. However, the problem for a landlord is that the court will only grant such possession if the landlord can prove one or more grounds contained in Schedule 2 of the Housing Act 1988. Assured Tenancies provides substantial security of a tenure as compared to Assured Shorthold Tenancies.

Security of tenure. Section 5, Housing Act 1988

(1)  An assured tenancy cannot be brought to an end by the landlord except by—

 (a) obtaining—

       (i) an order of the court for possession of the dwelling-house under section 7 or 21, and

        (ii) the execution of the order,

(b) obtaining an order of the court under section 6A (demotion order).

(c) in the case of a fixed term tenancy which contains a power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power.

Section 7, Housing Act, 1988 states that

  • The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act

Which makes obtaining a possession more difficult

Periodic Assure Tenancies

Periodic tenancies arise automatically at the end of the fixed term of assured tenancy. For example, if a tenant was granted a fixed term tenancy for five years, upon the expiry of the fixed term and in the absence of a new agreement for tenancy, the tenancy will automatically convert into a periodic tenancy.

These can only be terminated by the execution of court order for possession and landlord has to prove or provide grounds for possession. In the absence of any ground, the landlord will not be able to enforce the eviction.

Periodic Tenancy

Section 5(3) Housing Act 1988

The periodic tenancy referred is one—

(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy;

(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

(c) under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy;

(d) under which the periods of the tenancy are the same as those for which rent was the last payable under the fixed term tenancy; and

(e) under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy

Fixed-Term Assured Tenancies

On the expiry of a fixed term, the fixed term tenancy will convert into periodic tenancy and periodic tenancy can only be terminated by the execution of a court order for possession and landlord has to prove or provide grounds for possession. In the absence of any ground, the landlord will not be able to enforce an eviction.

Terms of an Assured Tenancy

  • The tenant will allow the landlord access to the property for repairs which landlord is entitled to repair
  • The Tenant will not assign the tenancy without prior consent of the landlord
  • The tenant will not sublet the dwelling house without prior consent of the landlord
  • The tenant will pay the rent which is agreed between the landlord and the tenant
  • The tenant will pay a fixed rent agreed between the landlord and tenants during a fixed term or the parties can agree to rent reviews during the fixed term and may agree to new amount
  • Under periodic tenancy, the landlord can increase the rent by following the procedure set out under section 13 of Housing Act 1988 and must serve a valid notice of his intentions
  • The issue of a rent can also be referred to rent assessment committee in case of periodic tenancy

Ending an Assured Tenancy

Assured tenancies provide significant security of tenure.

  • A tenant is given a right to end a fixed term tenancy by surrendering the tenancy or by exercising a breakup clause in the tenancy agreement.
  • A tenant of an assured tenancy can serve a notice of quit whenever he or she likes. However, the tenant has to comply with the terms of the tenancy
  • A mistake in the tenant’s notice to quit may not necessarily invalidate such notice, where a landlord is not misled by such mistake
  • Where a tenant terminates a tenancy, the tenant ceases to be an assured tenant and the landlord does not have to apply for possession. The landlord will be entitled to the possession.
  • A tenant can also lose his/her status as an assured tenant, where the tenancy is demoted or where the tenant uses the premises for illegal or unauthorised purposes. However, this will not result in termination of tenancy immediately. The contractual tenancy will continue and landlord has to follow a procedure to get a possession

Example

John is an assured tenant; however, his tenancy agreement expressly prohibits any business use. John has recently set up business from home. He may lose his status as an assured tenant. In this case, a landlord can seek a possession upon terminating the tenancy validly.

  • The landlord can also terminate An Assured Tenancy during the fixed term by any method agreed upon between a tenant and the landlord and expressly stated in the tenancy agreement. This will merely end the Assured tenancy and landlord have to follow the procedure provided under Housing Act 1988 to get a possession and he must prove the grounds for possession (discussed under possession) in order to obtain a possession order

Demotion of An Assured Tenancy

Demotion means lowering the status of a tenancy. A registered social landlord or registered provider landlord can apply to the court for a demotion of an assured tenancy on the grounds that the tenant or any other person visiting or residing in the property has engaged in or threatened to engage in a conduct

  • Which is capable of causing nuisance or annoyance to any person; and
  • Which directly or indirectly relates to or affects the housing management functions of a relevant landlord; or
  • Which consists of or involves using or threatening to use housing accommodation owned or managed by a relevant landlord for an unlawful purpose

Impact of Demotion

  • A demoted tenancy is less secured tenancy then assured tenancy.
  • A demoted tenancy has security of an Assured Shorthold Tenancy
  • The duration is set generally one year.

After one-year landlord can seek for a possession under the rules of an assured shorthold tenancy (please refer to Assured Shorthold Tenancy). Where a relevant landlord does not seek possession after one year the demoted tenancy will revert back as an Assured Tenancy

Example

John holds an assured shorthold tenancy from registered social housing provider. His wife is constantly involved in playing loud music late night, partying, and is abusive to other residents in the area. John’s landlord can apply for a demotion of his tenancy and possibly easily evict him after 1 year.

Succession of An Assured Tenancy

The housing Act 1988 provides a guidance and a structure on succession. The rules are different for private landlords and social housing providers landlords.

Private landlords

  • Where a tenant holds a fixed-term tenancy dies, his/her tenancy will become part of his estate and will pass on according to his or her will. In the case where there is no will left by a deceased tenant, the tenancy will go to his estate and rules of intestacy will apply.
  • Where a tenant holds a periodic tenancy dies, his/her tenancy will become part of his estate and will pass on according to his or her will. In the case where there is no will left by a deceased tenant, the tenancy will go to his estate and rules of intestacy will apply.
  • Under section 17 of the Housing Act 1988, only the Assured tenant’s spouse or civil partner is allowed to succeed to the tenancy

Section 17 of Housing Act applies to private landlords only where;

  1. The sole tenant under assured tenancy dies; and
  2. Immediately before the tenant’s death the tenant’s spouse or civil partner was occupying the dwelling-house as his or her only or principal home; and
  3. Where the deceased tenant was not a successor

Registered Provider of Social Housing Landlords

Where the landlord is Registered Provider of Social Housing, the provisions of section 17applies to both fixed term assured tenancy of over two years and periodic assured tenancies

  • A spouse or a civil partner is entitled to succeed the Assured Tenancy upon the death of Assured tenant
  • If the Assured tenant has died after 1 April 2012 and there is no spouse or civil partner living at the property at the time of the tenant’s death, the tenancy may pass to another person by succession.

One Succession Only

The Housing Act 1988 allows only one succession. Where the deceased tenant was already a successor there will be no further succession of the property is allowed.

Possession of An Assured Tenancy

An assured tenancy can only be terminated by order of a court. An assured tenancy can be brought to an end by a landlord by serving a notice seeking possession upon the tenant under Section 8, Housing Act 1988. The court may only make such an order on the grounds laid down in HA 88 Sch. 2 and then only where a ‘competent’ notice as laid down in HA 88 S. 8 has been served

The notice must comply with following requirements

  • It must be in prescribed form
  • It must inform the tenant that landlord intends to bring possession proceedings
  • It must state the grounds on which the landlord is pursuing a possession and provide particulars of the ground. It must also include information on what action, if any, the tenant may take to avoid forfeiture of the tenancy.
  • The notice must inform the tenant that the proceedings will not be begun earlier than the specified date in the notice (Generally two weeks from the date of service of the notice)
  • Where a landlord is seeking possession on the ground of nuisance the date specified in the notice can be any time on or after the date of service of the notice
  • However, the courts by virtue of section 5 of the Protection from Eviction Act 1977 provides tenants with four weeks to quit from the date of service of the notice
  • The notice must be served on the tenant, ideally, the notice should be personally served on the tenant
  • The court has the discretion to dispense with the S. 8 notice

Grounds for Possession

  • The grounds for possession are laid out in HA 88 Schedule 2
  • Grounds for possession are divided into mandatory and discretionary grounds
  • Where the landlord can establish a mandatory ground, the court is obliged to grant an order for possession,
  • Where the landlord establishes a discretionary ground, the court will only grant an order for possession where it is reasonable to do so.

Mandatory grounds

Ground 1: Recovery by (a) an owner occupier or (b) future occupier.

Where an owner-occupier has let a property as an assured tenancy and wishes to return to live in the property or where someone purchases a property wishing to occupy at some time in the future but lets it out in the meantime they can recover the property on this ground provided they have notified the assured tenant of this intention at commencement of the letting.

The court has a discretion to dispense with the notice requirement where it is reasonable to do so in cases involving joint landlords either can apply under this ground. The ground will only apply where either the owner occupier or one of the joint owner occupiers lived in the property as her/his only or principal home at some point prior to the letting.

In the case of a future occupier, s/he must show that the property is required for occupation as her/his only or principal home or that of his spouse or civil partner. The ground is not available to future occupiers who purchase the property after the commencement of the tenancy.

Ground 2: Recovery by the mortgagee.

This is available where the mortgagor of a property has defaulted on payment and the mortgagee requires recovery in order to sell with vacant possession. The ground is only available where the tenant was notified in writing prior to the commencement of the tenancy although the court has the discretion to waive this requirement where it is just and equitable to do so.

Ground 3: Recovery of Premises required for holiday letting.

This ground is available to landlords who wish to let out the property as holiday lets where the tenant was given written notice prior to the commencement of the tenancy and the property must have been let as a holiday let within the 12-month period prior to the commencement of the tenancy.

Ground 4: Recovery of a student let.

This applies to property let to students by specified educational institutions for a maximum period of 12 months. Written notice must be given prior to the commencement of the letting and the property must have been let out as a student letting within a period of 12 months prior to the commencement of the letting.

Ground 5: Recovery for use by a minister of religion.

Where tenant was notified prior to the commencement of the tenancy that the property would be required for use by a minister of religion in connection with the performance of her/his duties.

Ground 6: Recovery for redevelopment.

Available where a landlord intends to redevelop a property and this is only possible with vacant possession. This is available to social housing providers landlords but not to landlords who acquire the property after the commencement of the tenancy. Reasonable removal expenses are available to tenants where this ground is used

Ground 7: Recovery on the death of a periodic tenant.

This ground is available against a tenant who has inherited the tenancy under the will of a deceased tenant or on intestacy. Proceedings must commence within 12 months of the death.

Ground 7A: A new mandatory ground for possession is inserted here by the Anti-Social Behaviour, Crime and Policing Act 2014 S. 97.

A landlord may apply for mandatory possession on this ground where a number of conditions are met, e.g. where the tenant or someone living in or visiting the property is in breach of an order prohibiting anti-social behaviour.

Ground 8. Recovery because of serious rent arrears.

The landlord may recover on this ground where, in the case of a weekly or fortnightly tenancy, rent is eight weeks in arrears. For monthly periodic tenancies two months arrears, fixed-term tenancies where rent is payable quarterly where rent is 3 months in arrears. Arrears are only due on rent that is lawfully due.

Housing Benefit

The court is unable to treat the late payment of housing benefit as a valid defence to the claim nor to suspend possession pending payment of the benefit in order to make good the arrears because it has no discretion in regards to this ground. However, where the tenant has a valid counterclaim, e.g. for disrepair, the court may adjourn the hearing if it is satisfied that the landlord does not have a valid ground for possession as required under Housing Act 1988 S.9.

Discretionary Grounds

  • Grounds 9-17 are ‘discretionary’, where the landlord proves one of these grounds the court will only grant a possession order where it believes it is reasonable to do so. The court has extended discretion in regards to these grounds under HA 88 Section. 9.
  • Section 9 gives the court discretion to adjourn the proceedings or to stay, postpone or suspend any order. It is for the landlord to show that the court should use its discretion in her/his favour. Arguments in favour of the landlord will not be considered unless the landlord raises them in court
  • The court will take into account all relevant factors at the date of the hearing, these might include the length of tenancy, interests of all concerned including landlord and neighbours, the likelihood of the breach recurring and in rent arrears cases the history of rent arrears and conduct of the parties. There are additional powers of discretion in regards to ground 14 anti-social behaviour cases
  • Failure by the court to consider the reasonableness of granting an order or failure to consider relevant facts or consideration of irrelevant facts can be grounds for appeal

Ground 9: Suitable alternative accommodation.

A landlord may obtain possession on this ground where s/he can show that suitable alternative accommodation is available or will be available at the time of possession. The alternative accommodation must be suitable to the needs of the tenant and their family in terms of cost and extent. This is measured against the standard of accommodation which would be made available to the tenant and family by a local authority, the same comparison would be made in regards to rent.

Where a landlord is able to obtain a certificate from a Local Housing Authority agreeing to give such accommodation this will be conclusive. The alternative accommodation must have a suitable level of security and in particular must not be subject to grounds 1-5 above Where the landlord is successful under this ground the tenant is entitled to reasonable removal expenses.

Ground 10: Rent Arrears.

This ground is available where at the date of issue of proceedings and on the issue of section 8 notice the tenant was in arrears of rent lawfully due. Where the section 8 requirement of notice is disregarded by the court the ground is available where arrears are owed at the date of issue of proceedings.

Ground 11: Persistent late payment of rent.

This ground is available where the tenant persistently pays rent late. There is no requirement of arrears at the time of commencement of proceedings.

Ground 12: Breach of obligation.

This is available where the tenant breaches an express or implied term of the tenancy. The court is unlikely to use its discretion to grant a full order where the breach is not serious, where the landlord has accepted rent after becoming aware of the breach it will have been waived

Ground 13: Recovery due to deterioration of the dwelling house or common parts.

This ground applies where due to “…acts of waste by, or neglect or default of…” the tenant or any other resident the dwelling house or common parts suffer deterioration. Where the deterioration is caused by a lodger or sub-tenant the landlord must also show that the tenant has not taken that action which could be reasonably expected to remove them.

Ground 14: Recovery for nuisance, the annoyance of criminal activity.

This is the second most common ground after rent arrears used by Social Housing Providers and Local Housing Authorities in seeking possession. The ground is used in three distinct situations:

where the tenant or a person residing in or visiting the dwelling-house:

(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality; or

(b) has been convicted of using the dwelling-house, or allowing it to be used, for immoral or illegal purposes; or

(c) has been convicted of an indictable offence committed in, or in the locality of, the dwelling-house.

The ground goes far beyond acts of the tenant and extends to members of the tenant’s family, friends and associates. Following the ‘riots’ in Summer 2011 the Department of Communities and Local Government has produced a paper {Strengthening Powers of Possession for Anti-social Behaviour, May 2012} suggesting that this power should be extended to apply to members of the tenant’s family who are involved in ‘criminal activity’ in any riot in any part of the UK, this is now included in the new Anti-Social Behaviour, Crime and Policing Bill 2013.

Housing Act1988 Section 9a introduced a ‘structured’ discretion to be applied by the court in cases involving Ground 14.

The court must consider, in particular,

  1. a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons; and

 (c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

The courts are less tolerant of anti-social behaviour that includes an element of racism and are more likely in such cases to grant an outright possession order.

Ground 14a: Recovery because of domestic violence.

Only available to Social Housing providers and Charitable Housing Trusts. The ground is available where a property is occupied by a couple living together as spouses or civil partners or as if spouses or civil partners, one or both are tenants, and one has left the property because of domestic violence or threat of domestic violence by the remaining partner or a member of the remaining partner’s family. The court must be satisfied that the landlord has served notice, or taken all reasonable steps to serve notice, on the partner who has left and that they are unlikely to return.

The courts have restricted grant of an order on this ground to situations where domestic violence is the ‘real and effective’ reason for the partner’s departure and not where it is simply one of a number of grounds.

Ground 14ZA: Possession for Offences Related to Riot.

This ground was inserted by the Anti-Social Behaviour, Crime and Policing Act 2014 Section 99. This provides a discretionary ground for possession where the tenant or an adult residing in the dwelling-house has been convicted of an indictable offence which took place during, and at the scene of, a riot in the United Kingdom. The ground only applies to tenancies within England.

Ground 15: Recovery because of deterioration of furniture.

This ground is available where the landlord can show that there is deterioration of furniture supplied as part of the tenancy due to ill-treatment by the tenant, lodger or sub-tenant. In the latter cases, the landlord must also show that the tenant has failed to take reasonable steps to remove the lodger or sub-tenant.

Ground 16: Recovery from a former employee.

Where the landlord is an employer and has granted the tenancy in consequence of the tenant’s employment this ground is available on termination of the employment.

Ground 17: Recovery for false statement.

This is available where either the tenant or tenant’s representative has, in the latter case on the instigation of the tenant, knowingly or recklessly made a statement/s which have induced the landlord to grant a tenancy.

Important Forms

Form N5- Claims for possession of property

Form N5B- Claims for possession of property (Accelerated process)

Form N11B- Defence form (Accelerated Process)

FormN11R- Defence Form (Rented residential Premises)

Form N119- Particulars of Claim for Possession of property

For pre-action protocol for possession, forms and possession procedure please refer to Step two for step by step guidance.

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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