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Requirements of an assured shorthold tenancy created on or after 28 February 1997

This content applies to England

The basic requirements for an assured shorthold tenancy created after 27 February 1997, and tenancies that cannot be assured shorthold tenancies.

Requirements for an assured shorthold tenancy

All tenancies that meet the requirements of an assured tenancy (see the section on Assured tenancies) and are created on or after 28 February 1997 will automatically be assured shorthold tenancies, unless they come under one of the exceptions listed. [1]

Unlike assured shorthold tenancies created between 15 January 1989 and 27 February 1997, tenancies created on or after 28 February 1997:

  • do not require a pre-tenancy notice (section 20 notice)
  • can be periodic from the outset because there is no requirement for a fixed term
  • can have a break clause (see the page on Break clauses and notices for more information about break clauses in tenancy agreements) during the first six months, even if there is a fixed term.

The landlord and tenant can agree to a fixed term of any duration or to a periodic tenancy from the start.

Although there is no requirement for a six-month fixed term, a landlord cannot evict an assured shorthold tenant within the first six months of the tenancy (unless there is a breach of the tenancy agreement and the landlord seeks possession under one of the grounds available against all assured tenants – see the section on Assured tenancies for more information).

A landlord can give notice and obtain a possession order within the first six months (using the assured shorthold tenancy notice-only ground), but the possession order cannot take effect until six months have expired from the start of the tenancy. See the pages on Ending an assured shorthold tenancy for information on a landlord's powers to evict assured shorthold tenants.

Written statement of terms

An assured shorthold tenant whose tenancy was created on or after 28 February 1997 may ask the landlord in writing to provide a written statement of certain terms of the tenancy.[2] These terms are:

  • the date of the start of the tenancy
  • the rent payable and the dates of payment
  • any provision for a rent review
  • if the tenancy is a fixed-term tenancy, the length of the fixed term.

The landlord has to provide the information within 28 days. If the landlord fails to do this, s/he can be fined up to £2,500; prosecution is by the local authority. The landlord does not have to provide the information if it has already been provided and the terms have not changed.

Provision of prescribed information

This requirement only applies to ASTs granted in England on or after 1 October 2015.

A landlord must provide a tenant with a copy of the government guide How to rent: the checklist for renting in England. A paper copy of the guide must be provided unless the tenant has notified the landlord or agent that s/he is content to accept service of notices and other documents by email. A landlord is not required to provide a further copy if the tenancy is renewed or if the guide is updated.[3]

A landlord who fails to provide a tenant with a copy of the guide cannot serve a valid section 21 notice to end an AST. The requirement to give the tenant the guide can be satisfied at any time before the notice is served. For further information see Restrictions on the use of section 21.

A landlord that is a private registered provider of social housing is exempt from the requirement.

Deposits

From 6 April 2007, if a tenant pays a deposit in relation to an assured shorthold tenancy, or renews an assured shorthold tenancy on which s/he has previously paid a deposit, the deposit must be protected under a Government-approved tenancy deposit protection scheme.[4] If the deposit is not protected, the landlord may have to pay a penalty, and the section 21 notice procedure will not be available to her/him (see the pages on ending an assured shorthold tenancy for details).

See the pages on Deposits for more information on tenancy deposit protection schemes.

Tenancies that cannot be asured shorthold tenancies

An assured shorthold tenancy is a type of assured tenancy, so tenancies that cannot be assured equally cannot be assured shorthold.

The following tenancies created after 27 February 1997 will not be an assured shorthold tenancy.a href="#_edn5" name="_ednref5" title="Link to footnote number 5">[5]

Tenancies excluded by notice

The landlord may serve the tenant with prior notice stating that the tenancy is not to be an assured shorthold tenancy,[6] The notice can take effect at some time in the future, for example 12 months after the commencement of an assured shorthold tenancy.

Further the landlord may serve notice during the tenancy stating that the tenancy is no longer an assured shorthold tenancy.[7] A letter sent by the landlord to the tenant that unambiguously stated he had on completion of a one year 'starter' (ie an assured shorthold) tenancy become an assured tenant was held to be an effective notice, despite the fact that the landlord had earlier served notices seeking possession.[8]

The notice must be in writing but there is no prescribed form. A rent book that has the words 'assured tenancy' on the cover does not constitute notice.[9]

Tenancies containing exclusionary provision

If there is a provision in the tenancy agreement stating that it is not to be an assured shorthold tenancy, then it will be an assured tenancy.[10] If there is no written tenancy agreement it would still be possible to agree such a provision, although it would be much harder to prove in the case of a dispute.

Tenancies by succession

If the tenant has succeeded to a tenancy under the Rent Act 1977 or Rent (Agriculture) Act 1976,[11] the tenancy will be assured, unless the tenant is the spouse or civil partner of the original tenant or living with the tenant as a spouse or civil partner, in which case the tenancy will remain protected (see the section on Succession for more information).[12]

Former secure tenancies

Tenancies that were secure will become assured, for example if a large-scale voluntary transfer takes place where the local authority landlord is replaced by a housing association.[13]

Tenancies arising on expiry of a long lease

Tenancies created on the expiry of a long residential lease[14] will be assured tenancies if the lease expires on or after 15 January 1999 (if the lease expires before 15 January 1999 the tenancy will be a regulated tenancy).[15]

Agreements replacing assured tenancies

A new tenancy granted on/after 28 February 1997 will be fully assured if:[16]

  • the new agreement is granted to someone who was an assured tenant immediately beforehand (or, in the case of a previous joint assured tenancy, to at least one of the previously joint assured tenants), and
  • the landlord (or at least one person in the case of joint landlords) remains the same.

Depending on the circumstances, a short gap between agreements might be sufficient for the new tenancy to be classed as not entered into immediately after the previous one ended.[17]

If the tenant wishes, s/he may serve a notice on the landlord stating that the tenancy is not to be an assured tenancy (but an assured shorthold instead).[18] The notice must be in a prescribed form (Form 8),[19] although a notice that was in a form substantially to the same effect is likely to be valid. [20] The notice must be served before the new tenancy starts.[21]

Assured agricultural occupancies

Assured agricultural occupancies where the agricultural worker condition is fulfilled (see the section on Agricultural occupiers for more information) cannot be assured shortholds unless the landlord grants a new tenancy accompanied by a notice in the prescribed form stating that the tenancy is to be a shorthold. Even in this case the tenancy will not be an assured shorthold if it is 'excepted', meaning that the new tenancy is granted to an existing assured agricultural occupier by the same landlord immediately following the end of the previous tenancy.[22]

[1] s.19A Housing Act 1988, as inserted by s.96 Housing Act 1996.

[2] s.20A Housing Act 1988, as inserted by s.97 Housing Act 1996.

[3] s.21B Housing Act 1988, as inserted by s.39 Deregulation Act 2015; reg 3 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

[4] s.213(1) Housing Act 2004.

[5] Sch.2A Housing Act 1988, as inserted by Sch.7 Housing Act 1996.

[6] para 1, Sch.2A Housing Act 1988.

[7] para 2, Sch.2A Housing Act 1988.

[8] Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202.

[9] Andrews and Andrews (executors of the estate of Hodges, dec'd) v Cunningham [2007] EWCA Civ 762.

[10] para 3, Sch.2A Housing Act 1988.

[11] para 2, Sch.1 Rent Act 1977, as amended by Sch.8, para 13 Civil Partnership Act 2004; ss.3-4 Rent (Agriculture) Act 1976, as amended by Sch.8, paras 10-11 Civil Partnership Act 2004.

[12] para 4, Sch.2A Housing Act 1988.

[13] para 5, Sch.2A Housing Act 1988.

[14] Sch.10 Local Government and Housing Act 1989.

[15] para 6, Sch.2A Housing Act 1988.

[16] para 7, Sch.2A Housing Act 1988.

[17] see for example Bolnore Properties Ltd v Cobb (1997) 29 HLR 202  (note: the case concerned the meaning of 'immediately' in s.52(2) of the Housing Act 1980, in the context of transitional protection for Rent Act tenants, however it may be of relevance).

[18] para 7(2), Sch.2A Housing Act 1988.

[19] Form No.8, Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 SI 2015/620.

[20] following Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 and Manel v Memon [2000] 2 EGLR 40, CA.

[21] para 7(2)(b), Sch.2A Housing Act 1988; Kahlon v Isherwood [2011] EWCA Civ 602.

[22] para 9(3), Sch.2A Housing Act 1988.

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