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Where tenancy cannot be AST

This content applies to England

There are certain situations in which an assured shorthold tenancy could not have been created. 

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

Same landlord

A tenancy cannot be assured shorthold where the tenant (or at least one of the tenants in the case of a joint tenancy) was an assured tenant of the same landlord immediately prior to the grant of the new tenancy. The new tenancy will be assured even if the landlord issued a pre-tenancy (section 20) notice[1] and irrespective of whether the premises in question are different. This does not apply if there was a gap in time, even a short one, between the two tenancies (in which case an assured shorthold was created). On or after 28 February 1997, a tenant in this situation would be caught under the new provisions on assured and assured shorthold tenancies (see the section on Tenancies created after 27/2/97 for more information).[2]

New joint tenant and failure to meet shorthold requirements

A joint tenancy which was originally an assured shorthold will cease to be assured shorthold in the followed situation: one of the joint tenants left and was replaced by another, and the landlord granted a new joint tenancy before 28 February 1997 but failed to fulfil the requirements of an assured shorthold tenancy (ie a fixed term of at least six months, no break clause in the first six months (see the page on Break clauses and notices for more information about break clauses in tenancy agreements), and a pre-tenancy notice (see the section on Tenancies created 15/1/89 – 27/2/97 for more information). In this case the tenancy would be an assured tenancy. If a new joint tenancy is created on or after 28 February 1997, this loophole no longer applies.

Agreement to create assured tenancy

A tenancy will also no longer be an assured shorthold tenancy if the landlord and the tenant agree to create an assured tenancy on expiry of the assured shorthold. In order to do this the landlord, or one of the landlords where there are joint landlords, must give the tenant written notice that the new tenancy is not an assured shorthold.[3]

[1]  s.20(3) Housing Act 1988.

[2] Dibbs v Campbell (1988) 20 HLR 374, Court of Appeal.

[3] ss.20(4) and (5) Housing Act 1988 (before 28 February 1997); paras 1-2, Sch.2A Housing Act 1988 (after 28 February 1997; inserted by Housing Act 1996).

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