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ASSURED SHORTHOLD TENANCIES
Requirements for assured shorthold tenancies
The position is different, depending upon whether the tenancy was granted before 28 February 1997 or on or after that date.
A. Tenancies granted before 28 February 1997
Housing Act 1988 s20 stipulated four requirements for the creation of an assured shorthold tenancy:
• It had to be for a fixed term of not less than six months;
• It could not contain any provision enabling the landlord to terminate the tenancy within six months of the beginning of the tenancy;
• Notice in the prescribed form had to be served before the commencement of the tenancy stating that the tenancy will be an assured shorthold tenancy. The court has no power to dispense with service of this notice. The form of the notice is prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988.
York and Ross v Casey [1998] 2 EGLR 25, (1999) 31 HLR 209, CA.
Clickex Ltd v McCann [1999] 30 EG 96, CA
Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034, [2002] HLR 33
White v Chubb; Kasseer v Freeman [2001] EWCA Civ 2034, [2002] 11 EG 156
Osborn and Co Ltd v Dior [2003] EWCA Civ 281; [2003 HLR 45
A s20 notice could be served upon a prospective tenant’s agent. (Yenula Properties Ltd v Naidu [2002] EWCA Civ 719; [2003] HLR 18)
• It would have been an assured tenancy but for these three requirements being satisfied.
B. Tenancies granted on or after 28 February 1997
Housing Act 1996 section 96 and Sched 7 take effect as Housing Act 1988 s19A and Sched 2A. They provide that all tenancies entered into on or after 28 February 1997 which would otherwise have been assured tenancies are automatically assured shorthold tenancies lacking long term security of tenure unless certain exceptions apply (See Schedule 2A). This applies whether the tenancy is granted orally or by a written agreement. In other words, the requirement of a s20 notice informing the tenant that the tenancy would be an assured shorthold tenancy has been abolished.
Possession proceedings
Housing Act 1988 s21 provides:
21(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling‑house let on the tenancy in accordance with Chapter 1 above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling‑house if it is satisfied
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling‑house.
All that a landlord need do to recover possession is to:
a) prove that the tenancy has come to an end and that no new tenancy has been granted; and
b) give at least two months' notice to the tenant that the landlord requires possession; and
c) take court proceedings.
If landlords comply with these requirements, they are automatically entitled to possession. The court has no power to suspend possession orders, apart from Housing Act 1980 s89(1) which provides that orders for possession must take effect no later than 14 days after the court order unless exceptional hardship would be caused, in which case the maximum period that may be allowed is six weeks.
The section 21 notice
- may be given before any fixed term expires or even at the beginning of the tenancy (s21(2));
- need not be in any particular form, although it must be in writing (Housing Act 1996 s98);
- may be given by only one of several joint landlords (s21(4)(a)).
There is no power to dispense with service of the notice.
It is important to check that
(a) the notice gives at least two months notice although no actual date need be specified provided that "the tenant knows or can easily ascertain the date referred to." Lower Street Properties Ltd v Jones [1996] 48 EG 154, CA
(b) if the tenancy is a periodic tenancy, the date specified in the notice is (or the period of notice given in the notice expires on) "the last day of a period of the tenancy" (s21(4)(a)). See McDonald v Fernandez [2003] EWCA Civ 1219; (1987) 19 HLR 29; where the Court of Appeal rejected a landlord's contention that s21 should be construed in the same way as the common law rules relating to notices to quit. A section 21 notice is not a notice to quit. The niceties of contractual notices to quit should not be imported into the plain words of the statute. Section 21(4)(a) requires the notice to specify the last date of the period. It is not a situation where the legislation permits the form to be substantially to the same effect. The subsection is clear and precise. Accordingly, a notice served during a periodic assured shorthold tenancy which does not expire "on the last day of a period of the tenancy" is unlikely to be valid. N.B. also Notting Hill Housing Trust v Roomus [2006] EWCA Civ 407; [2006] 1 WLR 1375.
(c) the date specified "is not earlier than the earliest day on which . . . the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice . . ." (s21(4)(b)). Accordingly more than two months' notice is required where there is an express provision requiring a longer period of notice or the rental period is longer than two months, e.g., where there is a quarterly tenancy, in which case three months' notice has to be given; and
(d) proceedings have not been commenced before the date specified in the notice. The claim for possession in Lower Street Properties Ltd v Jones was dismissed because proceedings were started the day before the s21 notice expired. Schiemann LJ stated it "is implicit that the landlord cannot bring proceedings until after [the date specified in the notice]" although Kennedy LJ reached his decision on the grounds that the notice served stated "The landlord cannot apply for such an order before the notice has run out", and left open whether, with a different wording, proceedings could have been begun before expiry;
(e) if the tenancy is one to which Housing Act 1988 s19A applies, that any possession order will not take effect earlier than six months after the grant of the original tenancy (Housing Act 1988 s21(5) as inserted by Housing Act 1996 s99).
Tenancy deposits and s21 notices
Housing Act 2004 s215 provides that landlords may not serve notices under Housing Act 1988 s21 at any time when there is a failure to comply with the tenancy deposit scheme provisions of that Act – i.e. where a deposit is not being safeguarded in accordance with an authorised scheme or where either the initial requirements of the scheme have not been met or the prescribed information regarding the safeguarding the deposit has not been given.
Section 21 and ECHR Article 8
In Poplar HARCA v Donoghue [2002] QB 48, [2001] 3 WLR 183, CA, a case in which a housing association served a s21 notice and took possession proceedings against an assured shorthold tenancy, the Court of Appeal held that notwithstanding its mandatory terms, the right to possession contained in s21(4) does not conflict with the tenant's right to family life under ECHR Art.8. The section is clearly necessary in a democratic society insofar as there has to be a procedure for recovering possession of property at the end of a tenancy. The court would defer to Parliament as to whether the restricted power of the court under that section was legitimate and proportionate.
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