The Housing Law Website

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Secure Tenancy | Introductory Tenancy | Demoted Tenancy | Non-Secure Tenancy | Assured Tenancy | Shorthold Tenancy | NTQ
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The Law

 

Demoted Tenancy

The demoted tenancy, introduced by the Anti-Social Behaviour Act 2003, enables Local authorities and housing trusts to deal more effectively with anti-social behaviour. It instigates a two-stage regime entitling such landlords to apply to demote an otherwise secure tenancy; and then, during this demoted period, the landlord may seek possession of the property as of right (provided it follows the statutory procedure.)

Notice Effect Gaining Possession

 

Stage 1 – Demoting the Tenancy:

The court will not make a demotion order unless it is satisfied:

  1. that the tenant or person residing in or visiting the dwelling-house has engaged or has threatened to engage in conduct to which s153A or 153B of the Housing Act 1996 applied, and
  2. that it is reasonable to make the order.

The first limb of this test is clearly the most important. s153A and s153B HA 1996 deal with two situations; conduct that is a nuisance or annoyance (s153A) and conduct arising from an unlawful use of the premises (s153B)

 

Conduct which is a nuisance or annoyance -

This applies to conduct which:

  1. Is capable of causing nuisance or annoyance to any person, and
  2. directly or indirectly relates to or affects the housing management functions of the landlord.

Nuisance or annoyance do not have any special legal meaning, and are rather given their ordinary, everyday meaning.

 

Conduct arising from an unlawful use of the premises -

This applies to conduct whereby:

Someone has used or threatened to use the housing accommodation (owned or managed by the landlord) for an unlawful purpose. Such unlawful purposes clearly include any conduct amounting to a criminal offence (such as drug dealing, running a brothel, or harbouring stolen goods), however the landlord is not obliged to establish a conviction as a prerequisite for this head.

 

Notice:

The Notice requirements in seeking a demotion order differ depending on the type of tenancy:

Secure Tenancy -

To seek a demotion order of a secure tenancy, a form of s83 NoSP must be served. This notice must:

  1. Be in a prescribed form;
  2. Specify a date after which the proceedings may be begun (this date must be no earlier than the tenancy could have been determined at common law)

The NoSP will seize to be in force 12 months after the specified date from when proceedings may be commenced.

The requirement for notice may be dispensed with if the court thinks it just and equitable to do so.

 

Assured Tenancy -

Under s6A HA 1988, the court must not entertain proceedings for a demotion order unless a notice has been served; there is no prescribed form for this notice. The notice must:

  1. Give particulars of the conduct in respect of which the order is sought;
  2. Specify two dates between which the proceedings may be begun. The beginning date must not be sooner than two weeks after the notice is served. The end date will be 12 months after the notice is served;

The requirement for notice may be dispensed with if the court thinks it just and equitable to do so.

 

Effect of Demotion:

Again, the effect of demotion order on the tenancy depends on what type of tenancy has been demoted.

Secure Tenancy -

If the landlord is a local authority or Housing Action Trust, a demotion order will end the secure tenancy and replace it with a 'demoted tenancy'. The tenant will lose a number of the rights enjoyed under secure tenancy (including, the right to buy their home and the right to exchange their home with another tenant.)

If the landlord is a registered social landlord, a demotion order will end the secure tenancy and replace it with a demoted assured short-hold tenancy. (see below). The former secure tenant who has been demoted will not regain their secure tenancy status after the demotion period has ended but will become an assured tenant.

Assured Tenancy -

A demotion order will end the assured tenancy and replace it with a demoted assured short-hold tenancy. This is an ordinary assured short hold tenancy except that there is no restriction on the landlord obtaining a possession order during the first six months of the tenancy on the basis that they have given notice in accordance with s21 HA 1988.

Other Forms of Tenancy -

Demotion cannot be sought for other forms of tenancy. This includes, for example, tenants of local authorities who hold introductory tenancies.

 

The Demotion Period:

The demotion period will initially be for 1 year; however this may be extended if possession is sought during this time.

Following the expiry of the demotion period, (and assuming an order for possession has not been sought during this time), the demoted tenancy reverts back to the original tenancy.

 

 

Stage 2 – Gaining Possession

By the very nature of a demoted tenancy, the landlord is in a much stronger position to gain possession of the property. There is no need to establish any ground for possession, nor is it even necessary to prove that the tenant has been continuing in his/her anti-social or illegal behaviour. However, landlords should not seek to end a demoted tenancy without reason, nor too soon after the demotion order has been granted, as the demoted tenancy provides a chance for the tenant to improve his/her behaviour; such a course of action may lead to judicial review of the landlord's decision to evict.

As above, the procedure for gaining possession of a demoted tenancy differs depending on the type of tenancy in question.

Demoted (ex-secure) Tenancy:

The courts will order possession of the property provided that the statutory process detailed in s143D-F HA 1996 is followed.

The statutory procedure provides that notice must be given to the tenant. The notice must:

  1. State that the court will be asked to make a possession order,
  2. Set out the Landlord's reasons for seeking such an order,
  3. Specify a date after which the possession proceedings may be begun. This date may be no sooner than the tenancy could be determined by a Common Law Notice to Quit (see “Notice to Quit” here. ).
  4. Inform the tenant of his right to request a review of the landlord's decision to seek an order for possession within 14 days of the service of the Notice.
  5. Inform the tenant to seek help, if needed, from the Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.

As will be noted, the tenant has a right to review of the landlord's decision to seek an order for possession. If such a review is sought, the Landlord must give the tenant not less than 5 days clear notice of the date of the review and inform the tenant of the time and place at which the review will be heard.

 

Demoted Assured Shorthold Tenancy (ex-Assured Tenancy):

A tenant of such a tenancy can be evicted in the same circumstances as any other assured shorthold tenant.

A Notice in accordance with s21 HA 1988 must be served. This notice must:

  1. Be in writing; however there is no prescribed form; and
  2. Give a minimum of two months' notice to the tenant, which must be expressed to expire on the last day of the period of the tenancy; which date must be no earlier than the tenancy could have been determined at common law.

There is no restriction on the landlord obtaining a possession order during the first six months of the tenancy s21(5A).

There is no entitlement to review of the landlord's decision to seek possession.

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