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Where tenancy cannot be an AST

This content applies to England

Tenancies that cannot be assured shorthold tenancies.

Introduction

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.1]

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,[2] 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.[3] 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.[4]

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.[5]

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.[6] 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,[7] 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).[8]

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.[9]

Tenancies arising on expiry of a long lease

Tenancies created on the expiry of a long residential lease[10] 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).[11]

Agreements replacing assured tenancies 

A new tenancy granted on/after 28 February 1997 will be fully assured if:[12]

  • 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.[13]

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).[14] The notice must be in a prescribed form (Form 8),[15] although a notice that was in a form substantially to the same effect is likely to be valid. [16] The notice must be served before the new tenancy starts.[17]

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.[18]

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

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

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

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

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

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

[7] 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.

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

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

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

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

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

[13] 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).

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

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

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

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

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

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