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Creating a flexible tenancy

This content applies to England

How local authorities can create a flexible tenancy and the tenant's right of review.

The landlord and tenant conditions for creating a secure tenancy must both be satisfied when creating a flexible tenancy (see the What is a secure tenancy page for more details on the conditions).

Creating a flexible tenancy

Local authorities can grant flexible tenancies after they have adopted a tenancy strategy or interim policies that allow for it. For further information see Tenancy strategies. It is up to each local authority to decide whether it will grant flexible tenancies and, if so, in what circumstances.

The local authority landlord must serve prior written notice on the prospective tenant that her/his tenancy will be a flexible tenancy of a minimum fixed term.[1]

If the local authority grants introductory tenancies to new tenants, it must notify the prospective tenant that on expiry of the trial period her/his introductory tenancy will become a flexible tenancy.[2]

In specific circumstances a local authority can let a flexible tenancy at an 'affordable rent', ie a rent of up to 80 per cent of the market rent. For more information see Affordable tenancies.

Right of review of offers

A prospective flexible tenant can request a review of the length of the term offered when it does not reflect the local authority's policy on the length of the fixed-term flexible tenancies it will grant.[3]

The request must be made in writing and within 21 days of the offer of the tenancy, unless the local authority landlord agrees to a longer period in writing. Regulations set out the procedure to be followed on review.[4]

There is no right to appeal a decision on review. Further, there is no right to request a review of the decision to offer a flexible tenancy rather than a periodic secure tenancy.

Any legal challenge in either of these circumstances will have to be made by way of judicial review (see Judicial review for more information) and/or by making a complaint to the Ombudsman (see Complaining to the Ombudsman for more information).

Duration of flexible tenancies

A flexible tenancy must be granted for a minimum term of two years.[5] However, the Government has issued statutory Directions to the Regulator of Social Housing which set out that a flexible tenancy ought to be granted for a minimum term of five years, except in 'exceptional circumstances' when they can be granted for a minimum of two years.[6]

The requirement that a tenancy with a fixed-term of three years or more must be made by deed (ie the contract must say it is a deed and the signatures of the landlord and tenant must be witnessed) does not apply to flexible tenancies of this duration.[7]

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.107A(2) and (3) Housing Act 1985, as inserted by s.154 Localism Act 2011.

[2] s.137A Housing Act 1996, as inserted by s.155 Localism Act 2011.

[3] s.107B(3) Housing Act 1985, as inserted by s.154 Localism Act 2011.

[4] The Flexible Tenancies (Review Procedures) Regulations 2012 SI 2012/695.

[5] s.107A(2)(a) Housing Act 1985, as inserted by s.154 Localism Act 2011

[6] Para 2(3)(d) Appendix A 'Final Directions', Implementing Social Housing Reform: Directions to the Social Housing Regulator – Consultation: Summary of Responses, DCLG, December 2011.

[7] s.52 Law of Property Act 1925 as amended by s.156 Localism Act 2011.

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