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Definition and features of demoted tenancies

This content applies to England

Types of demoted tenancy, how demotion affects a tenancy, conditions which must be satisfied for a demotion order, and rules for serving a demotion notice.

Demoted tenancies as an alternative to possession

Demotion presents social landlords with an alternative to possession proceedings where a tenant is causing nuisance through antisocial behaviour. The tenant does not lose their home and can regain their original tenancy and security of tenure after 12 to 18 months.

A social landlord can apply to demote a tenancy where the tenant, or someone living with or visiting the tenant, has:[1]

  • engaged or threatened to engage in antisocial behaviour, or
  • used or threatened to use the property for an unlawful purpose.

Besides the relevant behaviour, there are other conditions that must also be satisfied for a tenancy to be demoted, see below.

Types of demoted tenancy

A demoted tenancy is a form of tenancy that reduces a tenant's security of tenure and rights for 12 to 18 months.[2]

There are two types of demoted tenancy:

  • local authority (or housing action trust) secure or flexible tenancies are demoted to demoted tenancies[3]
  • private registered providers of social housing assured, secure or fixed-term (of two-years or more) tenancies are demoted to demoted assured shorthold tenancies[4].

Terms of a demoted tenancy

All demoted tenancies are periodic; if the original tenancy was a fixed-term tenancy, the demoted tenancy will be a weekly periodic tenancy.[5] The landlord may specify terms of the original tenancy which are to apply to the demoted tenancy, but these can only be terms which already applied to the original tenancy.

Rent in a demoted tenancy

The rent payable and the day on which rent is due remain the same when a tenancy is demoted. Any rent arrears payable on the original tenancy are payable under the demoted tenancy; equally any rent paid in advance (as most rent is) is carried over to the demoted tenancy.

Security of tenure in a demoted tenancy

The security of tenure of all demoted tenants is substantially reduced for the duration of demotion. The level of security of tenure of a demoted tenant is similar to that of an introductory tenant (local authority/housing action trust tenants) or an assured shorthold tenant (private registered providers of social housing (PRPSH) tenants).

Possession of a demoted tenancy

Social landlords should follow the Pre-action Protocol for Possession Cases by Social Landlords before pursuing possession proceedings

The landlord must obtain a possession order from the court, but they do not need to prove a ground for possession or that it is reasonable to make the possession order.

There do not need to have been further incidents of antisocial behaviour or nuisance for the landlord to get a possession order against a demoted tenant.

If the landlord follows the correct procedure the court must make the possession order (unless a PRPSH landlord has served notice under section 8 Housing Act 1988).[6] However, the Supreme Court has ruled that, in order to safeguard the occupier's Article 8 rights (to respect for the home: see the European Convention on Human Rights for further information), county courts are permitted to consider the proportionality of making a possession order, including the power to decide issues of fact.[7] A defence can now be raised, in the county court possession proceedings, that evicting the demoted tenant may not be proportionate to achieving the legitimate aim sought (eg preventing antisocial behaviour).

The Supreme Court also raised the possibility that if the court does not consider an outright possession order to be proportionate then it could postpone, suspend (perhaps pending an event, such as rehousing) or even refuse possession although this power may currently be at odds with some domestic law.[8]

For further information see the pages Ending an LA demoted tenancy and Ending a PRPSH demoted tenancy .

Succession, assignment and the right to buy

When a tenancy is demoted, the rights to succeed to or assign that tenancy and the right to buy may be altered for the duration of demotion, depending on whether the tenancy is a local authority/housing action trust demoted tenancy or a PRPSH demoted tenancy.

For further information see the Assignment section and:

Some PRPSH tenants have a preserved right to buy, on demotion this is lost.[9] It is not clear as to whether the tenant loses the right permanently or whether they regain the right after the end of the demotion period. Most sources concur that the right is lost permanently, in which case this would be a possible defence against the reasonableness of granting the demotion order.

Rights to repairs

The right to repair contained in section 11 of the Landlord and Tenant Act 1985 applies to demoted tenants. The landlord must keep the structure and exterior of the dwelling-house in good repair, and keep the installations in the dwelling-house for the supply of water, gas, electricity, sanitation, space heating, and heating water in good repair and proper working order.

Rights to information

Local authority landlords must publish information about:[10]

  • the terms of their demoted tenancies
  • the chapter in the Housing Act 1996, which was inserted by the Anti-social Behaviour Act 2003, dealing with demoted tenancies, and
  • their repairing obligations.

Such landlords must also provide to each demoted tenant a copy of the published information and a written statement of any additional terms relating to that demoted tenancy, unless contained in the tenancy agreement or implied by law.

Landlords who can apply for demotion orders

The following types of landlords can apply for demotion orders:[11]

  • local authorities
  • housing action trusts
  • private registered providers of social housing.

The rules governing proceedings in demotion claims are outlined in Part 65 of the Civil Procedure Rules (CPR).

Tenants who can be demoted

The above landlords can seek demotion orders against the following types of tenant:[12]

  • secure tenants, secure licensees and flexible tenants
  • assured tenants.

What behaviour triggers demotion?

The court can only make a demotion order if it is satisfied that the behaviour in question meets the criteria set out below.[13]

The behaviour must be caused by:

  • the tenant, or
  • a person living with or visiting the tenant (even if the tenant is unaware of the behaviour and powerless to stop it).[14]

It can be behaviour which the perpetrator has engaged in, or threatened to engage in.

The behaviour must:[15]

  • have caused or be capable of causing nuisance or annoyance to any person, and
  • directly or indirectly relate to or affect the housing management functions of the relevant landlord

or

  • involve using or threatening to use housing accommodation owned or managed by a relevant landlord for an unlawful purpose.

There is a significant difference between the wording here and that in the discretionary grounds for possession relating to antisocial behaviour for secure and assured tenants (grounds 2 and 14 respectively).[16] In the grounds, the behaviour must be 'likely' to cause nuisance, but for demotion orders the behaviour need only be 'capable' of causing nuisance. The threshold of behaviour required for demotion is therefore lower.

It is also important to note the condition (with respect to the nuisance ground) that the behaviour must directly or indirectly relate to the housing management functions of the landlord. This is far from precise, but it does mean that some incidents of antisocial behaviour which concern a private matter will not be relevant for tenancy demotion. For example, a fight between neighbours over excess noise in the property in question would be relevant, but a fight over a private disagreement between neighbours would not be relevant.

Reasonableness

The court must not make the demotion order unless it is satisfied that it is reasonable to make the order.[17] The low level of antisocial behaviour required to satisfy the criteria for issuing a demotion order means that the question of reasonableness provides the main opportunity for defences against demotion – see Defending demotion claims for possible arguments.

Notices against assured tenants

The form of the notice is not prescribed by law, but it must give details of the behaviour to which it relates.[18] The notice period (before court proceedings are commenced) must be at least two weeks from the date on which the notice is served. The notice remains valid for 12 months from service of the notice.

It is important to note that if a landlord serves a notice seeking possession on the grounds of nuisance (ground 14), proceedings normally can begin immediately following the service of the notice. However, if a demotion notice is served at the same time as the possession notice, then the two-week notice period applies.

For more information see Notice of seeking possession to end an assured tenancy.

Notices against secure tenants

The notice must be in the prescribed form.[19] The notice period must be at least 28 days. The notice remains valid for 12 months from the date on which proceedings could begin.

It is important to note that if a landlord serves a notice seeking possession on the grounds of nuisance (ground 2), proceedings normally can begin immediately following the service of the notice. However, if a demotion notice is served at the same time as the possession notice, then the four-week notice period applies.

For more information see Notice of seeking possession of a secure tenancy.

Waiving notice requirement

The court can waive the requirement to serve notice where it is 'just and equitable' to do so. This also applies to notices seeking possession of assured and secure tenancies and existing case law relating to the waiver of notices against assured and secure tenants is applicable to demoted tenants.[20]

[1] s.82A Housing Act 1985;s.20B Housing Act 1988.

[2] ss.14 and 15, and Sch.1 Anti-social Behaviour Act 2003.

[3] s.82A Housing Act 1985;  ss.143A-P Housing Act 1996.

[4] s.82A Housing Act 1985; ss.6A and 20B Housing Act 1988.

[5] s.82A(6) Housing Act 1985; s.6A(9) Housing Act 1988.

[6] s.143D(2) Housing Act 1996 and Civil Procedure Rules Part 55.

[7] Manchester City Council v Pinnock [2010] UKSC 45.

[8] s.89 Housing Act 1980.

[9] s.171B(1A) Housing Act 1985.

[10] s.143M Housing Act 1996 as inserted by Sch.1 Anti-social Behaviour Act 2003.

[11] s.82A(1) Housing Act 1985; s.6A(1) Housing Act 1988.

[12] s.82A(1) Housing Act 1985; s.6A(1) Housing Act 1988.

[13] s.82A(4)(a) Housing Act 1985 (secure tenancies) and s.6A(4)(a) Housing Act 1988 (assured tenancies), as amended by Sch.11 Anti-social Behaviour, Crime and Policing Act 2014.

[14] Portsmouth CC v Bryant (2000) 32 HLR 906: Washington Housing Company Ltd v Morson [2005] EWHC 3407.

[15] s.82A(4)(a) Housing Act 1985 (secure tenancies) and s.6A(4)(a) Housing Act 1988 (assured tenancies), as amended by Sch.11 Anti-social Behaviour, Crime and Policing Act 2014.

[16] Sch.2 Housing Act 1985 (secure); Sch.2 Housing Act 1988 (assured).

[17] s.82A(4)(b) Housing Act 1985; s.6A(4)(b) Housing Act 1988.

[18] s.6A(6) Housing Act 1988.

[19] s.83 Housing Act 1985; Secure Tenancies (Notices) (Amendment) (England) Regulations 2004 SI 2004/1627.

[20] s.8 Housing Act 1988 and s.83 (1)(b) Housing Act 1985; Kelsey Housing Association v King (1996) 28 HLR 270, CA.

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