Requirements of an assured shorthold tenancy created on or after 28 February 1997

All tenancies that meet the requirements of an assured tenancy and are created on or after 28 February 1997 are automatically assured shorthold tenancies, unless they come under one of the exceptions listed. [1]

Unlike assured shorthold tenancies created between 15 January 1989 and 27 February 1997, tenancies created on or after 28 February 1997:

• do not require a pre-tenancy notice (section 20 notice)

• can be periodic from the outset because there is no requirement for a fixed term

• can have a break clause during the first six months, even if there is a fixed term

The landlord and tenant can agree to a fixed term of any duration or to a periodic tenancy from the start.

Although there is no requirement for a six-month fixed term, a landlord cannot evict an assured shorthold tenant within the first six months of the tenancy (unless there is a breach of the tenancy agreement and the landlord seeks possession under one of the grounds available against all assured tenants).

A landlord can give notice and obtain a possession order within the first six months, but the possession order cannot take effect until six months have expired from the start of the tenancy.

An assured shorthold tenant whose tenancy was created on or after 28 February 1997 may ask the landlord in writing to provide a written statement of certain terms of the tenancy.[2]

These terms are:

• the date of the start of the tenancy

• the rent payable and the dates of payment

• any provision for a rent review

• if the tenancy is a fixed-term tenancy, the length of the fixed term

The landlord has to provide the information within 28 days. If the landlord fails to do this, they can be fined up to £2,500; prosecution is by the local authority. The landlord does not have to provide the information if it has already been provided and the terms have not changed.

This requirement only applies to ASTs granted in England on or after 1 October 2015.

A landlord must provide a tenant with a copy of the government guide How to rent: the checklist for renting in England. A paper copy of the guide must be provided unless the tenant has notified the landlord or agent that they will accept service of notices and other documents by email. A landlord is not required to provide a further copy if the tenancy is renewed or if the guide is updated.[3]

A landlord who fails to provide a tenant with a copy of the guide cannot serve a valid section 21 notice to end an AST. The requirement to give the tenant the guide can be satisfied at any time before the notice is served.

A landlord that is a private registered provider of social housing is exempt from the requirement.

From 6 April 2007, when a tenant pays a deposit in relation to an assured shorthold tenancy, or renews an assured shorthold tenancy on which they previously paid a deposit, the deposit must be protected under a Government-approved tenancy deposit protection scheme.[4]

If the deposit is not protected, the landlord may have to pay a penalty, and the section 21 notice procedure will not be available to them.

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.[5]

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,[6] 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.[7] A letter sent by the landlord to the tenant that unambiguously stated he had on completion of a one year 'starter' (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.[8]

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.[9]

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 is an assured tenancy.[10] 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,[11] the tenancy is 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.[12]

Find out more about regulated tenancy succession.

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.[13]

Tenancies arising on expiry of a long lease

Tenancies created on the expiry of a long residential lease[14] are 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).[15]

Agreements replacing assured tenancies

A new tenancy granted on or after 28 February 1997 will be fully assured if the:[16]

• 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

• 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.[17]

If the tenant wishes, they can serve a notice on the landlord stating that the tenancy is not to be an assured tenancy (but an assured shorthold instead).[18] The notice must be in a prescribed form (Form 8),[19] although a notice that was in a form substantially to the same effect is likely to be valid. [20] The notice must be served before the new tenancy starts.[21]

Assured agricultural occupancies

For a letting starting on or after 15 January 1989, a tenancy or licence where the occupier qualifies as an agricultural occupier will be an assured agricultural occupancy unless the landlord serves a prescribed notice that the occupancy should be an assured shorthold tenancy.[22] The landlord must issue the notice to the occupier before the agreement starts.

The landlord cannot grant an assured shorthold tenancy to a farm worker who already occupies tied accommodation under an assured agricultural occupancy, whether for the same accommodation or another property owned by the same landlord. [23]

Find out more about agricultural occupancies.