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What is an assured tenancy?

This content applies to England

Assured tenancies are defined under the Housing Act 1988.

An assured tenancy is defined as: a tenancy of a dwelling-house let as a separate dwelling to an individual, who is a single (sole) or joint tenant, where the tenant or at least one of the joint tenants occupies the house as her/his only or principal home.[1]

Dwelling-house

This can be the whole or part of a house, and covers flats or single rooms. Since there is no definition of a house, questions can arise over mobile homes, chalets and houseboats where they are let long term and are, in reality, immobile, so arguably to be treated as dwelling-houses.[2] For more information, see the section on Mobile homes. Case law has established that for a property to qualify as a dwelling-house, it does not need to have its own cooking facilities.[3]

Let as a separate dwelling

For a property to be considered a separate dwelling, the tenant must have some distinct accommodation. The Housing Act 1988 allows an assured tenancy to exist, even though there is sharing of a kitchen or bathroom with other tenants,[4] providing there is exclusive possession of the bedroom. A separate dwelling can also be two units let together for use as one home.

Individual

The tenant or each joint tenant must be an individual and not a company or institution.

Occupied as an only or principal home

The tenant must occupy the property as her/his 'only or principal home' for it to remain a assured tenancy.[5] If there are joint tenants, then only one has to be in occupation to maintain the assured tenancy. Where a tenancy is occupied by a spouse or civil partner who is the sole tenant, and that tenant leaves while the non-tenant spouse or non-tenant civil partner remains, assured tenancy status will be maintained.[6]

It is not necessary for the tenant to be living in the property continuously. A temporary absence for a long holiday, to work or to visit relatives abroad, or because of illness or imprisonment may be consistent with continued occupation, however, where the tenant is absent for a long period, this is likely to raise a presumption that the tenancy is no longer assured. In such circumstances:[7]

  • the onus will be on the tenant to show s/he has an intention to return. The focus will be on the tenant's enduring intention and will not be displaced by fleeting changes of mind[8] (this may be particularly problematic in cases where the tenant is mentally and/or terminally ill and/or has been admitted into long-term residential care)
  • it will not be sufficient that the tenant has a subjective intention to return, the facts of the case must show that a return to the property is a realistic possibility
  • there must be physical evidence of continuing occupation like furniture or other belongings, or the presence of a 'caretaker'.

Each case will depend on its own facts.

In some circumstances it is possible for a tenant to pass in and out of assured status by moving back in to the property after ceasing to occupy it as her/his only or principal home, but where the landlord has served a notice to quit the tenant condition must be satisfied at the date of expiry of the notice.[9]

Permanent loss of assured status

With effect from 15 October 2013, in England, an assured tenant of a registered social landlord permanently loses her/his assured tenancy status if s/he sublets, or parts with possession of, her/his social dwelling-house in breach of an express or implied term of the tenancy (ie s/he can no longer regain assured status even if later s/he moves back in).[10] However, this does not apply to shared ownership leases.

See the page on Social housing fraud for more information about criminal and civil consequences relating to the unauthorised subletting of social housing.

Tenancies after 27 February 1997

The majority of tenancies granted on or after 28 February 1997 will automatically be assured shorthold tenancies (see the section on Assured shorthold tenancies for more information). It will no longer be possible, as it was before 28 February 1997, for an assured tenancy to be granted by mistake, for example by the landlord failing to serve notice that the tenancy is to be an assured shorthold. However, there are some circumstances when the new tenancy cannot be an assured shorthold tenancy and must be an assured tenancy (see the page Where  tenancy cannot be an AST for more information.[11]

[1] s.1(1) Housing Act 1988.

[2] Elitestone v Morris 30 HLR 266 [1997] 1WLR 687; (1997) 30 HLR 266, HL; Spielplatz Ltd v (1) Pearson (2) Pearson [2015] EWCA Civ 804; (1) Mew (2) Just v Tristmire Ltd [2011] EWCA Civ 912.

[3] Uratemp Ventures Ltd v Collins (2001) 33 HLR 972, HL.

[4] s.3 Housing Act 1988.

[5] s.1(1) Housing Act 1988.

[6] s.30(1) Family Law Act 1996 and para 1, Sch.9 Civil Partnership Act 2004.

[7] Islington LBC v Boyle and Anor [2011] EWCA Civ 1450; Amoah v Barking and Dagenham LBC [2001] 82 P&CR DG6, Legal Action March 2001, CA.

[8] Hammersmith and Fulham LBC v Clarke (2001) 33 HLR 881, CA; Crawley BC v Sawyer (1987) 20 HLR 98, CA.

[9] Islington LBC v Boyle and Anor [2011] EWCA Civ 1450; Basingstoke and Deane BC v Paice (1995) 27 HLR 433, CA.

[10] s.15A Housing Act 1988, as inserted by s.6 Prevention of Social Housing Fraud Act 2013; Prevention of Social Housing Fraud Act 2013 (Commencement) (England) Order 2013 SI 2013/2622.

[11] Sch.2A Housing Act 1988.

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