Secure Tenancies

Introduction

Secure tenancies under the Housing Act 1985 offer the highest level of security and rent control in the rented sector. Such tenancies apply to all tenants of Local Housing Authorities and those tenants of housing associations whose tenancies started prior to 15 January 1989.

Secure tenancies were originally introduced by the Housing Act 1980.Some tenants of Housing Associations., the Housing Corporation and Charitable Trusts still enjoy secure status under the Housing Act 1985.

However, this does not apply to tenancies which were started after 15 January 1989 when the Housing Act 1988 came into force. Any tenancy of Social Housing provider’s property which came into existence prior to 15 January 1989 continues its secure status provided there is no change in the landlord. 

Exclusions from Secure Status

Following tenancies are excluded from acquiring a secure status

  • Long tenancies, those for more than 21 years;
  • Introductory tenancies;
  • Demoted tenancies;
  • Tenants who are employees of the landlord or other public body and occupy the property in order to perform her/his employment duties;
  • Tenancies of property on land acquired for development where the landlord is using the property pending development;
  • Tenancies of property given to a homeless person under Pt VI of the Housing Act 1996;
  • A family intervention tenancy;
  • A tenancy of property provided to an asylum seeker under Pt VI of the Immigration and Asylum Act 1999;
  • Accommodation provided on a temporary basis to a secure tenant of another property that is undergoing work.
  • There are other exceptions with to the schedule but these are the most frequently encountered.

General Conditions

A tenant has to fulfil following conditions in order to qualify as a secure tenant

Let as a dwelling House condition

  • A dwelling house can be a single room, flat or house and can include up to 2 acres of non-agricultural land
  • By dwelling, it means that it is the residence of the tenant as his/her home
  • It is the place where a tenant lives and to which he/she returns and which forms part of the centre of his/her existence
  • The tenant will sleep there and usually eat there; he/she will often prepare at least some of his meals there. But his home is not the less his/her home because the tenant does not cook there but prefers to eat out or bring in ready-cooked meals
  • It has never been a requirement that cooking facilities must be available for a premise to qualify as a dwelling”

The landlord conditions

In broad terms, secure tenancies are public sector housing tenancies.

  • The landlord must be a Local Housing Authority
  • A New Town Corporation
  • Housing Action Trust
  • Urban Development Corporation
  • Greater London Authority
  • Welsh Minister, a Mayoral Development Corporation or Housing Corporations

The Tenant Condition

  • The tenant must occupy the dwelling-house as her/his only or principal home.
  • Principal home stands for a place where tenant returns after work, sleep, eat and which is his usual residence and it is a place where he spends his substantial and most time
  • If a tenant has the second place, the court will analyse which property should qualify as Principal Home
  • It is a matter of facts and degree to be decided by the Court
  • The length or other circumstances of the tenant’s absence may raise the inference that the dwelling which is the subject of the proceedings ceased to be the tenant’s principal home.
  • Burdon of proof is on the tenant to prove that the house is his principal or main home
  • An intention to use a house as a principal or main house is not enough to show that it is principal home of the tenant

Secure Flexible Tenancies

Landlords can now grant a secure ‘flexible’ tenancy instead of or in addition to a periodic secure tenancy. The tenancy will be a flexible tenancy where:

  • It is granted for a minimum of 2 years by a Local Housing Authority or other landlord listed above in under landlord conditions
  • The landlord has given notice to the tenant that the tenancy will be a flexible tenancy before the start of tenancy

Flexible Tenancies are granted to following tenants

  • A new tenant
  • An introductory tenant prior to the start of an introductory tenancy by notifying the introductory tenant that on expiry of the introductory tenancy it will become a flexible tenancy
  • A family intervention’ tenant who was a flexible tenant prior to becoming a family intervention tenant
  • A demoted tenant who was a flexible tenant immediately prior to the demoted tenancy coming into existence
  • Any person served with notice of a flexible tenancy may appeal within 21 days of the notice
  • On the expiry of a flexible tenancy, the landlord can grant another flexible tenancy of another property which is more suited to the tenant’s needs, perhaps smaller where children have moved away
  • On expiry of the fixed term of a flexible tenancy, the landlord has a mandatory ground for possession provided the procedure for eviction is properly followed

Introductory Tenancies

The Housing Act 1996 introduced a new form of non-secure tenancy or licence known as an ‘introductory’ tenancy

  • Introductory tenancy runs for a minimum period of 12 months and can be extended to 18 months
  • This was made available to those Local Housing Authorities and Social Housing provider landlords who wished to operate a form of ‘trial’ tenancy in an effort to avoid creating security of tenure for those who might later prove to be anti-social or prone to accumulating rent arrears
  • An introductory tenancy arises where the Local Housing Authorities and Social Housing Provider landlords elect to implement the scheme and both landlord and tenant conditions stated above are fulfilled as well
  • An introductory tenancy will not arise where the tenant was formerly a secure or assured tenant but may do so where the tenant was an assured shorthold tenant
  • Introductory tenancies are excluded from acquiring a secure status and provided the landlord follows the correct procedure for terminating an introductory tenancy the court must order possession
  • Where the behaviour of the tenant is such that the landlord has reason to do so the introductory tenancy can be extended up to 18 months. The landlord must give notice of intention to do so at least eight weeks prior to the end of the initial 12 months introductory tenancy
  • At the end of the 12 or 18-months introductory period, the tenancy will become secure provided the landlord has not commenced proceedings to terminate the tenancy
  • A notice must inform the tenant of the landlord’s intention to commence proceedings and the reason for doing so, it must also specify the earliest date on which proceedings could commence. The notice must also inform the tenant of the right to request a review
  • Procedures for review are laid out in regulations {Introductory Tenancy (review) Regulations 1997} as are procedures for review of extension of an introductory tenancy {Introductory Tenancies (Review of Decision to Extend a Trial Period) (England)Regulations 2006}
  • Provided the notice is valid notice is served by a landlord the court will grant a mandatory possession
  • However, where a tenant has a ‘seriously arguable’ human right case under Article 8 case the County Court must assess the proportionality/merits of awarding possession by balancing the needs of the landlord against those of the tenant

Security of Tenure

A secure tenancy can only be brought to an end by a court ordering possession and execution of the order. A court may make one of three kinds of order

  1. An order for possession. The court can only do so where one of the grounds for possession in HA 85 Sch. 2 is made out and where the landlord has served a valid notice seeking possession under.
  2. An order for demotion where the court is satisfied that there has been anti-social behaviour
  3. An order terminating a fixed term tenancy so that a periodic tenancy arises instead (refer to Fixed term and Periodic tenancies

Flexible Tenancy

On expiry of a flexible tenancy, the landlord has a mandatory right of possession provided

  • the fixed term of the flexible tenancy has expired; and
  • the landlord has given at least six months’ notice

Contents of Notice

  1. Informs the tenant that s/he (landlord) does not intend to grant another flexible or other tenancy on expiry of the current flexible tenancy; and
  2. Provides reasons for not granting a further tenancy; and
  3. Notifying the tenant of her/his right to review of this decision.

The landlord must also give at least two months’ notice of intention to pursue possession. This may be given prior to or on the date of expiry of the flexible tenancy.

Demoted tenancies

A landlord can apply to a County Court for a demotion order where s/he believes that a secure tenant or a relative or acquaintance of a tenant has engaged in or has threatened to engage in anti-social behaviour or is using the property for illegal purposes.

The consequence of a demotion order is a loss of security of tenure. The tenancy is subsequently subject to mandatory possession. This provision only requires that the landlord must comply with the proper procedure, service of notice etc, for the court to be required to order possession on a mandatory basis. However, the court will only give such an order where it is reasonable to do so

A demoted tenancy reverts to a secure tenancy where the landlord does not apply for possession within one year.

Anti-Social Behaviour conduct

It is 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.

Possession

Landlord’s action for possession. 

Notice Seeking Possession

  • A landlord can only commence proceedings for possession following a service of a competent notice seeking possession although the court has the discretion to dispense with notice where it is just and equitable to do so
  • The notice must be in a prescribed form
  • The notice should specify and give details of the ground or grounds on which possession is sought as well as either the date after which proceedings could commence or on which the tenant is required to give up possession of the property
  • The date should not be before the tenancy could have been brought to an end by a notice to quit {e.g. where the tenancy is a weekly periodic tenancy commencing on Monday the NTQ would be required to end the tenancy at midnight on Sunday}
  • Minor errors in the Notice for Seeking Possession will not be fatal but it must state the grounds on which possession is sought in a manner that enables the tenant to make good any fault
  • Where the ground is domestic violence and one partner has left the property, the landlord must show that they have taken reasonable steps to serve notice on the tenant, who may not be traceable

Grounds for Possession

Secure tenancies offer the highest security of tenure to a tenant. A landlord can only seek for the possession where he/she can prove a ground or grounds for possession provided under Schedule 2 of Housing Act 1985. A court will only order possession where one of the grounds listed below is proved by a landlord.

Schedule 2 divides the grounds into 3 parts

Pt I. (The fault grounds)

These are grounds 1-8, 2A (Domestic Violence) and grounds 2AA and 2ZA added by the Anti-Social Behaviour, Crime and Policing Act 2014. In total, there are 11 grounds in this part. The court will only order possession on these grounds where it is reasonable to do so.

Pt. II. (Grounds 9, 10, 10A and 11)

The court will only order possession where there is suitable alternative accommodation available to the tenant. Ground 10A {redevelopment Schemes} was added by the Housing and Planning Act 1986. Pt. II now comprises 4 grounds in total.

Pt. III. (Grounds 12-16)

A Court may only order possession under grounds 12-16, where it considers that it reasonable to do so and suitable alternative accommodation both are available.

The criterion for determining the suitability of alternative accommodation are contained in Pt. IV to Schedule 2

Pt. I. Fault Grounds

Ground 1. Rent arrears or breach of some other term of the tenancy.

 The rent lawfully due to a landlord is due or has not been paid or any other obligation of the tenancy has been broken or not fulfilled

Ground 2. Anti-social behaviour

This ground is subject to the discretion of the Court. The tenant or a person residing in or visiting the dwelling-house

  1. 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
  2. Has been convicted of
  • Using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
  • An arrestable offence committed in, or in the locality of the dwelling house

Ground 2A. Domestic Violence.

This amendment was introduced in response to the common situation where the perpetrator of domestic violence remains in possession when the victim flees the property.

Or the victim stays at the property and the preparator of the violence leaves the dwelling house.

In this situation, the landlord is often left with a single person occupying family size accommodation. This particular ground will allow a landlord to regain the possession of the property.

 Criteria

  1. One of both of the partners is a tenant of the dwelling-house
  2. One partner left because of violence or threats of violence by the other towards
  • That partner, or
  • A member of family of that partner who was residing with that partner immediately before the partner left
  1. The court is satisfied that the partner who has left the property is unlikely to return

Ground 2aa. This ground extends the scope of anti-social behaviour beyond the locality of the tenancy. The ground is available in regards to any tenant who is “…guilty of conduct causing or likely to cause a nuisance or annoyance to any person residing in the locality or to the landlord or a person working for or acting on behalf of the landlord anywhere. Previously the conduct had to have taken place in the locality of the property.

Ground 2ZA. This ground is available where the tenant or anyone living in or visiting the property is guilty of an indictable offence in the course of a riot anywhere in the UK.

Ground 3. Waste.

The condition of the dwelling-house or of any of the common parts has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or a person residing in the dwelling-house and, in the case of an act of waste by, or the neglect or default of, a person lodging with the tenant or a sub-tenant of his, the tenant has not taken such steps as he should reasonably have taken for the removal of the lodger or sub-tenant.

Ground 4. Deterioration of furniture.

The condition of furniture provided by the landlord for use under the tenancy, or for use in the common parts, has deteriorated owing to ill-treatment by the tenant or a person residing in the dwelling-house and, in the case of ill-treatment by a person lodging with the tenant or a sub-tenant of his, the tenant has not taken such steps as he/she should reasonably have taken for the removal of the lodger or sub-tenant.

Ground 5. False Statement.

Ground 5 applies where a tenant has obtained a grant of a tenancy by making a false statement. The ground is only available where the tenancy is held by the person who has made the false statement. Where a tenant, who had obtained the tenancy by false statement, had assigned the tenancy to their partner the ground does not apply. As the dwelling house is already assigned.

Ground 6. Unlawful assignment.

Law allows a secure tenant, with their landlord’s consent, to assign their tenancy to another secure or assured tenant by way of mutual exchange. However, the exchange must be freely agreed, where one of the tenants involved pays the other some form of a financial inducement this ground is available to a landlord to repossess the property.

Ground 7. Misconduct by employee tenant in certain accommodation

This ground allows a landlord (refer to landlord conditions above) to obtain a possession from its employee who has been living under secure tenancy but who is guilty of a misconduct. For example, a caretaker of school or Hospital.

Ground 8. Temporary accommodation while works carried out

As the title suggests a landlord can gain a possession of a property which was temporarily provided to a tenant, while work was carried out on the dwelling -house which he previously occupied as his only or Principal home.

Part II

There have been very few challenges on these grounds which relate to development issues. Courts may order possession if a suitable alternative accommodation is available to tenant.

Ground 9. Overcrowding.

A landlord can seek possession on the ground of overcrowding the criteria is given below, however, it is important to note that court will only allow possession where there is a suitable alternative accommodation is made available by a landlord.

Criteria

The courts will apply a room standard and/or a space standard under Housing Act 85 Pt. X. The room standard is that no room can be occupied by more than two people or by two children of the opposite sex over ten years of age. Children under 1 do not count and those between 1 and 10 years as only half a person.

Ground 10. Demolition of the property. Which requires vacant possession of the property. However, the court will only allow possession where there is a suitable alternative accommodation is made available by a landlord.

Ground 10A. Redevelopment Scheme.

Where the property is situated within the area of an approved development scheme and the landlord wants to dispose of the property in accordance with the scheme.

Ground 11. Charitable Landlord

The court will allow a possession to a landlord where the landlord is a charity and the tenant’s continued occupation of the dwelling-house would conflict with the objects of the charity.

Part III

These grounds are only available where suitable alternative accommodation is available and also where it is reasonable to do so

Ground 12. An employment-related tenancy

An employment-related tenancy, which is now required for the new employee and where a tenant of an employment-related tenancy is no longer employed and the landlord requires the tenancy for a new employee.

Ground 13. Accommodation required for physically disabled person

Accommodation specially designed for use by a disabled tenant and the current tenant does not require the specially designed property.

Ground 14. Accommodation required for a person in especially difficult circumstances

Very similar to ground 13, however, the consideration here is the circumstances. But the court may only allow a possession, where it is reasonable to do so and also there must be an alternate accommodation available to existing tenant.

Ground 15. Accommodation required for a person with special needs

Where the property is required for use by a special needs tenant and there is some social service or special needs provision in close proximity (nearby area, for example, hospital, treatment centre etc), which the current tenant is not in need of.

Ground 15 A. Accommodation required in England too extensive for statutory occupier

Under this ground, the landlord can seek possession where the current dwelling house of a tenant is too extensive or more extensive than is reasonably required by the tenant.

Ground 16. Accommodation required in Wales too extensive for statutory occupier

Under this ground, the landlord can seek possession where the current dwelling house of a tenant is too extensive or more extensive than is reasonably required by the tenant.

The court will consider whether an alternative accommodation is available first, before moving to consideration of whether or not it is reasonable to order possession. Even where the court finds that suitable alternative accommodation is available it will not necessarily exercise its discretion in regards to reasonableness in the landlord’s favour in appropriate cases.

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.