The Housing Law Website

subglobal1 link | subglobal1 link | subglobal1 link | subglobal1 link | subglobal1 link | subglobal1 link | subglobal1 link
Secure Tenancy | Introductory Tenancy | Demoted Tenancy | Non-Secure Tenancy | Assured Tenancy | Shorthold Tenancy | NTQ
subglobal3 link | subglobal3 link | subglobal3 link | subglobal3 link | subglobal3 link | subglobal3 link | subglobal3 link
subglobal4 link | subglobal4 link | subglobal4 link | subglobal4 link | subglobal4 link | subglobal4 link | subglobal4 link
subglobal5 link | subglobal5 link | subglobal5 link | subglobal5 link | subglobal5 link | subglobal5 link | subglobal5 link
subglobal6 link | subglobal6 link | subglobal6 link | subglobal6 link | subglobal6 link | subglobal6 link | subglobal6 link
subglobal7 link | subglobal7 link | subglobal7 link | subglobal7 link | subglobal7 link | subglobal7 link | subglobal7 link
subglobal8 link | subglobal8 link | subglobal8 link | subglobal8 link | subglobal8 link | subglobal8 link | subglobal8 link

The Law

 

Assured Tenancies

The Housing Act 1988 introduced into the private sector two new types of tenancy; the assured tenancy and the assured shorthold tenancy. Further, in consequence of this Act, most tenancies granted by Housing Associations were removed from the remit of HA 1985 (Local Authority tenancies), and instead fell within HA 1988, with the Housing Association becoming a “Registered Social Landlord”.

Consequently, it is this Act which provides the framework for the majority of private residential lettings; be it a tenancy from a Housing Association or a private individual.

 

Conditions:

To qualify as an assured tenancy, the following conditions must apply:

  1. The property is let as a separate dwelling;
  2. The tenant is an individual; and
  3. The tenant occupies the dwelling-house as his/her only or principal home

Let as a Separate Dwelling = This condition provides that an assured tenancy must be let for residential purposes, and that the tenant must not share the living accommodation. If the tenant does so share the dwelling with the landlord, the tenancy will fall outside the scope of this Act; if the tenant shares the dwelling with other tenants, the tenant will be deemed to have an assured tenancy of the part which he/she is not required to share.

Tenant is an Individual = The tenant, or each of them if joint tenants, must be an individual.

Only or Principal Home = The tenant must occupy the dwelling-house as his/her only or principal home. This does not prevent the tenant occupying more than one property; provided that the dwelling in question is the ‘principal' one. The relevant considerations when determining this point are signs of occupation (furniture, clothes, etc) together with an intention to return. It should be noted that where the dwelling-house is the matrimonial home, occupation by the non-tenant spouse is treated as constructive occupation by the tenant.

 

Exclusions:

Certain exceptions apply to this qualification. These are:

  • Public Landlords (including the Crown and Local Authorities)
  • Resident Landlords = This allows a landlord who lets part of his own home obtain possession easily and quickly. For the exception to apply, the dwelling-house must form part of a larger building (not being a purpose-built block of flats), the Landlord must have occupied as his only or principal home another dwelling in the building at the time of granting the tenancy, and the Landlord's or another individual holding the landlord's interest must have so occupied the dwelling throughout the tenancy.
  • Business Tenancies
  • Certain High Value Tenancies
  • Tenancies at no or low rent

 

Assignment and Sub-Letting:

By virtue of s15 HA 1988, a term is implied into every periodic assured tenancy prohibiting assignment and sub-letting without the Landlord's consent. Any assignment or sub-letting will not be void, and will be effective in vesting the interest in the assignee / sub-tenant; however, the Landlord will be able to seek possession against the assignee or sub-tenant under Ground 12 (breach of term of Tenancy)

This term is implied only into periodic assured tenancies. When such a term is implied, there is no requirement that the Landlord's consent should not be unreasonably withheld.

 

Succession:

If the tenant dies, the tenancy will vest in accordance with the statutory rules. There are no statutory succession provision for a fixed term tenancy which will vest in the normal course of administration of the tenant's estate; however, a periodic assured tenancy is subject to the provisions within HA 1988 s.17. In such a case, the tenancy will vest in the tenant's spouse (or person living as spouse) if:

    1. Immediately before the death the spouse was occupying the dwelling-house as his/her only or principal home; and
    2. The tenant was not such a successor him or herself (only one statutory succession is permitted)

If no such qualified person exists, the normal rules of administration of estates will apply.

 

Rent:

Assured tenancies are not subject to any restrictions on rent which can be charged. However the tenant may refer to the Rent Assessment Committee if the Landlord proposes a rent increase on an assured periodic tenancy.

 

Termination:

An assured tenancy can only be brought to an end by the landlord obtaining a court order. The method by which this is achieved varies depending on whether the tenancy is fixed or periodic.

Fixed Term Tenancy:

A Fixed Term Assured Tenancy may be determined by three scenarios: Upon either effluxion of time or by the landlord exercising a contractual break clause, the Fixed Term Tenancy will end and become a Statutory Assured Periodic Tenancy; to end this periodic tenancy, the landlord will then have to follow the procedure outlined below.

The third way a Fixed Term Assured Tenancy may be determined is by the Landlord proving certain of the grounds for possession. A landlord seeking possession on one of these grounds in required to follow the statutory procedure.

Periodic Tenancy:

A Periodic Assured Tenancy (whether statutory or otherwise) may only be determined with a court order for possession upon establishing one of the statutory grounds (Sch 2 HA 1988). A landlord seeking possession on one of these grounds in required to follow the statutory procedure.

 

Possession:

The court cannot entertain proceedings for possession of a dwelling-house unless a section 8 Notice has been served on the Tenant. This notice must:

  1. Be in the prescribed form (SI 1997/194– Form 3);
  2. Specify the ground(s) on which the Landlord is seeking possession;
  3. Lay out particulars of the ground(s);
  4. State the date after which proceedings may be commenced (this date is no earlier than 2 weeks after service of the notice – however certain grounds have differing time periods);
  5. State that proceedings will not be begun later than 12 months from the date of service of the notice.

The court has a discretion to dispense with the requirement of service of the Notice if it considers it just and equitable to do so (except for Ground 8 where no such discretion exists.)

 

Grounds for Possession

These Grounds are contained in Schedule 2 HA 1988. The grounds fall into 2 categories:

Grounds 1-8 (Mandatory) = If the ground is made out, the court must make the possession Order

Grounds 9-17 (Discretionary) = If the ground is made out, the court will make the Order only if it is reasonable to do so.

NB: In seeking possession of a Fixed Term Tenancy, the court may only order possession if:

  • Grounds 2, 3, 4, 8, or 10 to 15 are made out, and
  • The terms of the tenancy entitle the landlord to terminate for the ground(s) in question.

Ground 1 - Owner-occupation:Mandatory / Periodic / Additional Notice Req
expand retract

Before the grant of tenancy, the Landlord occupied the dwelling-house as his only or principal home; or, the Landlord requires the dwelling-house for his or his spouse's only or principal home and did not acquire title for money or money's worth.

In addition, the Landlord must have given notice to the Tenant before the grant of tenancy that possession might be recovered on this ground. The court can dispense with this requirement if just and equitable to do so.

Further, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.

Ground 2 - Mortgagee:Mandatory / Periodic + Fixed / Additional Notice Req
expand retract

The dwelling-house is subject to a mortgage granted before the commencement of the tenancy and:

  1. The mortgagee is entitled to exercise a power of sale; and
  2. The mortgagee requires possession of the dwelling-house

In addition, the Landlord must have given notice to the Tenant before the grant of tenancy that possession might be recovered on this ground. The court can dispense with this requirement if just and equitable to do so.

Further, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.


Ground 3 Out of Season Holiday Home:
Mandatory / Fixed / Additional Notice Req
expand retract

The tenancy is for a fixed term not exceeding 8 months, and the dwelling-house was occupied under a right to use it for a holiday.

In addition, the Landlord must have given notice to the Tenant before the grant of tenancy that possession might be recovered on this ground.


Ground 4 Student Letting:
Mandatory / Fixed / Additional Notice Req
expand retract

The tenancy is for a fixed term not exceeding 12 months, and the dwelling-house was occupied by a student pursuing a course of study.

In addition, the Landlord must have given notice to the Tenant before the grant of tenancy that possession might be recovered on this ground.


Ground 5 Minister of Religion:
Mandatory / Periodic + Fixed/ Additional Notice Req
expand retract

The dwelling-house is held for the purpose of being available for occupation by a minister of religion, and such a minister requires it.

In addition, the Landlord must have given notice to the Tenant before the grant of tenancy that possession might be recovered on this ground.

Further, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.


Ground 6 - Redevelopment:
Mandatory / Periodic / Additional Notice Req
expand retract

The Landlord intends to demolish or reconstruct a substantial part of the dwelling-house and:

  1. the work cannot reasonably be carried out without the tenant giving up possession because:
    1. the tenant does not agree to a variation of the tenancy to allow access,
    2. the nature of the work means no such variation is practicable,
    3. the tenant refuses to accept a tenancy of a reduced part of the premises, or
    4. the nature of the work means no such tenancy is practicable; and
  2. the Landlord acquired his interest before the grant of tenancy, or acquired it afterwards but not for money or money's worth.

Further, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.


Ground 7 Devolved Tenancy:
Mandatory / Periodic / Additional Notice Req
expand retract

The tenancy is a periodic tenancy which has devolved under the will or intestacy of the former tenant and the proceedings for the recovery of possession are begun not later than 12 months after the former tenant's death.

Further, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.


Ground 8 Substantial Rent arrears:
Mandatory / Periodic + Fixed
expand retract

Both at the date of service of the s.8 Notice, and at the date of the hearing:

  • if rent is payable weekly or fortnightly, at least 8 weeks' rent is unpaid,
  • if rent is payable monthly, at least 2 months' rent is unpaid,
  • if rent is payable quarterly, at least 1 quarters' rent is more than 3 months in arrears,
  • if rent is payable yearly, at least 3 months' rent is more than 3 months in arrears


Ground 9 Suitable Alternative Accommodation:
Discretionary / Periodic / Additional Notice Req
expand retract

Suitable alternative accommodation is available for the tenant or will be available when the order for possession takes effect. The court will find that alternative accommodation is suitable if either a the local authority for the area where the property is situated provides a certificate certifying that the authority will provide accommodation to the tenant, or alternatively if the alternative property will provide the tenant with equivalent security of tenure and is similar in regards to rent, size, situation, etc.

In addition, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.


Ground 10 Rent Arrears:
Discretionary / Periodic + Fixed
expand retract

Some rent is unpaid on the date proceedings for possession are begun, and was in arrears at the date of service of the s.8 Notice.

 


Ground 11 Persistent Delay in Paying Rent:
Discretionary / Periodic + Fixed
expand retract

Whether or not any rent is currently in arrears, the tenant has persistently delayed in paying rent.


Ground 12 Breach of Obligation:
Discretionary / Periodic + Fixed
expand retract

Any obligation of the tenancy (other than one relating to rent) has been broken or not performed.


Ground 13 Condition of Premises:
Discretionary / Periodic + Fixed
expand retract

The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste, neglect, or default of the tenant or a person residing with the tenant. If the latter is a lodger or sub-tenant the court must be satisfied that the tenant has failed to take reasonable steps to ensure their removal.

 

 


Ground 14 Nuisance and Behaviour:
Discretionary / Periodic + Fixed
expand retract

The tenant or person residing in or visiting the dwelling house has either:

  1. Caused nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
  2. Been convicted of using the dwelling house or allowing it to be used for immoral or illegal purposes, or been convicted of an arrestable offence committed in, or in the locality of, the dwelling-house.


Ground 14A Domestic Violence:
Discretionary / Periodic+Fixed / Additional Notice Req
expand retract

The dwelling-house was occupied by a married couple or couple living together as husband and wife and,

  1. one or both of the partners is a tenant of the dwelling house;
  2. the landlord seeking possession is a registered social landlord or charitable housing trust;
  3. one partner has left because of violence or threats of violence by the other towards them or an occupying member of their family; and
  4. the court is satisfied that the leaving partner is unlikely to return

The court must be satisfied that the main reason for the partner leaving was the domestic violence (Camden LBC v Mallett [2001] 33 HLR 204)

If this ground is specified, there is an additional requirement that the landlord should serve notice (or take all reasonable steps to serve notice) on the partner who has left. This notice should inform the leaving partner of the possession proceedings and the grounds on which they have been brought (s83A)


Ground 15 Condition of Furniture:
Discretionary / Periodic + Fixed
expand retract

The condition of furniture, provided by the landlord, has deteriorated owing to ill-treatment by the tenant or a person residing with the tenant. If the latter is a lodger or sub-tenant the court must be satisfied that the tenant has failed to take reasonable steps to ensure their removal.


Ground 16 Employment:
Discretionary / Periodic / Additional Notice Req
expand retract

The dwelling-house was let to the tenant in consequence of his employment by the landlord and the tenant has ceased to be in that employment

In addition, the date specified in the s.8 Notice must not be earlier than 2 months from the date of service, and (for a periodic tenancy) no earlier than the tenancy could have been determined at common law.


Ground 17 - Misrepresentation by tenant
Discretionary / Periodic
expand retract

The tenant, or someone acting on his behalf, was guilty of a fraudulent misrepresentation in acquiring the tenancy. The landlord must prove that:

  1. The statement was false,
  2. The tenant knew that the statement was false, or was reckless to its truth,
  3. This induced the granting of the tenancy
About Us | Disclaimer | | ©2012