Assured tenancy definition

Definition and types of an assured tenancy, unfair terms in assured tenancy agreements, and the rules on assignment and succession.

This content applies to England

Definition of an assured tenancy

An assured tenancy is a type of tenancy that some private tenants and most housing association tenants have. 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 their 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] 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 their '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 they have an intention to return

  • 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'

For 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] Proving this could be difficult in cases where the tenant is mentally or terminally ill and has been admitted into long-term residential care.

Each case depends 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 their 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 their assured tenancy status if they sublet, or parts with possession of, their social dwelling-house in breach of an express or implied term of the tenancy. This means they can no longer regain assured status even if later they move back in.[10] However, this does not apply to shared ownership leases.

See 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. 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 Where tenancy cannot be an AST for more information).[11]

Types of assured tenancies

An assured (and assured shorthold) tenancy can be:

  • a fixed-term tenancy – where the landlord and tenant have agreed the tenancy will run for a set period of time, eg six months

  • a periodic tenancy – for an indefinite period with the rent being paid on a periodic basis, eg weekly, monthly, yearly

  • a statutory periodic tenancy – where the fixed term has expired and the landlord and tenant have not agreed to a fresh fixed term, a statutory periodic tenancy arises automatically[12]

The status of tenancies created by the Housing Act 1988

The majority of private sector and housing association tenancies entered into on or after 15 January 1989 are assured or assured shorthold tenancies. Assured shorthold tenancies are a type of assured tenancy that must meet all the conditions of an assured tenancy and not come within any of the exceptions to an assured tenancy.

From 28 February 1997, most private sector or housing association tenancies will automatically be assured shorthold tenancies unless the landlord chooses to grant an assured tenancy.[13]This is a reversal of the previous situation where tenancies were automatically assured unless the landlord took the correct steps to create an assured shorthold. However, private registered providers of social housing (PRPSH) [14] (housing associations, non-profit making companies and industrial and provident societies) continue to grant assured tenancies, although many will only do so after the expiry of a starter assured shorthold tenancy.

The status of tenancies created by the Housing Act 1980

Prior to the Housing Act 1988, an assured tenancy was one granted by an approved landlord (often a housing association) of premises newly built or substantially reconstructed, in respect of which a notice saying the tenancy was assured was served before the start of the tenancy. These tenancies were different from the type of assured tenancy created by the Housing Act 1988. These 'old style' assured tenancies were, in most cases, converted into new assured tenancies when the Housing Act 1988 came into force.

Fixed-term tenancies (PRPSH only)

With effect from 1 April 2012, private registered providers of social housing (PRPSH) can grant assured and assured shorthold tenancies with a fixed term of more than three years without a deed except when they are either long leases (granted for 21 years or more) or shared ownership properties.[15]

Unfair terms in assured tenancy agreements

Consumer law may provide a remedy where either the terms of a tenancy agreement are 'unfair', or where unfair trading practices have been used by a landlord or agent.

Where a tenancy contains terms that are deemed unfair, such terms may be unenforceable. A term is unfair where, contrary to the requirements of good faith, it causes a significant imbalance in the the relationship between the landlord and the tenant, to the detriment of the tenant.

Consumer protection law can also provide redress – such as the right to damages or to a discount – for assured tenants of private landlords if they have signed up to their tenancy because of a 'prohibited practice' used by a lettings professional, such as giving misleading information.

Tenants can also make a complaint to a redress scheme.

Assignment and succession for assured tenancies

Assignment is the transfer of an interest in a property, including a tenancy, to another person. Assignment, with the consent of the landlord, is possible in certain circumstances for some assured tenancies.[16]

Succession is the transfer of a property from the tenant to the spouse or civil partner or member of the family upon the tenant's death. There is provision for one statutory succession to an assured tenancy if certain conditions are fulfilled.[17]

Last updated: 15 March 2021

Footnotes

  • [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.

  • [12]

    s.5(2) Housing Act 1988.

  • [13]

    s.19A Housing Act 1988 (inserted by s.96 Housing Act 1996).

  • [14]

    s.1 Housing Act 1996.

  • [15]

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

  • [16]

    s.15 Housing Act 1988.

  • [17]

    s.17 Housing Act 1988 as amended by Sch.8 Civil Partnership Act 2004.