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2. A S S U R E D T E N A N C I E S
Most private sector landlords let on assured shorthold tenancies (see below). Most assured tenancies are granted by housing associations or other registered social landlords. (If granted before 15 January 1989, they would have been secure tenancies under Housing Act 1985, but see Housing Act 1988 s35.)
1. Requirements for an assured tenancy
There can only be an assured tenancy if there is a tenancy. There can be no such thing as an "assured licence".
Street v Mountford [1985] 2 WLR 877, HL.
AG Securities v Vaughan [1988] 2 WLR 689, HL.
Housing Act 1988 sl contains four pre‑requisites for the creation of an assured tenancy:‑
(a) The dwelling house must be let as a separate dwelling. This is the well known phrase which appears in the Rent Act 1977 section 1. The word “dwelling” is not a term of art with a specialised legal meaning. It is “the place where [an occupier] lives and to which he returns and which forms the centre of his existence . . . No doubt he will sleep there and usually eat there; he will often prepare at least some of his meals there.” However there is no legislative requirement that cooking facilities must be available for premises to qualify as a dwelling. In deciding whether an occupant has security of tenure
“The first step is to identify the subject-matter of the tenancy agreement. If this is a house or part of a house of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date when proceedings were brought, it was the tenant’s home. If so, it was his dwelling. . . . The presence or absence of cooking facilities in the part of the premises of which the tenant has exclusive occupation is not relevant.”
(Uratemp Ventures Ltd v Collins [2001] UKHL 43, [2002] 1 AC 301, [2001] 3 WLR 806)
Section 3 provides that if a tenant enjoys exclusive occupation of some rented accommodation with a right to share other accommodation with other people, apart from the landlord, the mere fact that the other accommodation is shared, does not prevent the tenant from occupying the accommodation which is not shared as a separate dwelling (compare Rent Act l977 s22 and Housing Act l985 s79).
(b) The tenant, or if there are joint tenants, each of the joint tenants, must be individuals. A genuine letting to a company can never be an assured tenancy (Hiller v United Dairies [1934] 1 KB 575, Hilton v Plustitle Limited [1988] 3 All ER 1051 and Kaye v Massbetter Ltd [1991] 39 EG 129. In such cases, the tenancy is unprotected and may be terminated either by effluxion of time or by service of a notice to quit. If this is done, a landlord who brings possession proceedings is automatically entitled to possession without having to prove any ground for possession.
(c) The tenant, or if there are joint tenants, at least one of them, must occupy the premises as his or her only or principal home. This is the same wording as Housing Act l985 section 8l, the "tenant condition" which applies to secure tenancies. It is a more restrictive definition than the comparable provisions in Rent Act l977 s2(l)(a). It is not possible for assured tenants to maintain assured tenancies in more than one home at the same time, although there is no reason why assured tenants should not be temporarily absent from the premises in question provided that they remain his or her only or main home.
Crawley BC v Sawyer (1987) 20 HLR 98
London Borough of Sutton v Swann (1985) HLR 140
Notting Hill Housing Trust v Etoria April 1989 Legal Action 22.
(d) A tenancy cannot be an assured tenancy if any of the exceptions listed in Schedule l applies. Many of these exceptions are similar to those set out in Rent Act 1977 Part I. These are :‑
1. A tenancy which is entered into before or pursuant to a contract made before l5th January l989.
2. Tenancies of dwelling houses with high rateable values ‑ i.e. over £1500 in Greater London, over £750 elsewhere (compare Rent Act 1977 section 4). NB References to Rating (Housing) Regulations 1990 SI 434 provide that where tenancies are granted after 1st April 1990, they cannot be assured if the rent is more than £25,000 per annum. "Rent" does not include sums paid in respect of services, repairs, maintenance or insurance.
3. Tenancies at a low rent ‑ either where no rent is payable or where the rent is less than two thirds of the rateable value. NB The References to Rating (Housing) Regulations provide that tenancies granted after 1st April 1990 cannot be assured if the rent is less than £1,000 per annum in London or less than £250 per annum outside London.
4. Business tenancies ‑ see Part II of the Landlord & Tenant Act l954 (compare Rent Act l977 sections 2 and 24).
5. Tenancies under which dwelling-houses consist of or comprise premises licensed for the sale of intoxicating liquors for consumption on the premises (compare Rent Act l977 section 11).
6 & 7.
Tenancies under which agricultural land, exceeding two acres is let together with the dwelling-house and agricultural holdings within the meaning of the Agricultural Holdings Act l986 (compare Rent Act l977 section l0).
8 Lettings to students by specified educational institutions. See the Assured and Protected Tenancies (Lettings to Students) Regulations Regulations 1998 SI No. 1967. which define SEIs - basically any institution which provides higher or further education which is publicly funded and various other named institutions and lettings by registered housing associations dents cannot be assured tenancies. (compare Rent Act 1977 section 8).
9. Holiday lettings ‑ where the purpose of the tenancy is to confer on the tenant the right to occupy the dwelling-house for a holiday (compare Rent Act 1977 s9).
Buchmann v May [1978] 2 All ER 993
R v Camden Rent Officer ex parte Plant (1981) 257 EG 713
10. Resident landlords :
(i) The dwelling house let forms only part of a building and the building is not a purpose built block of flats;
(ii) The tenancy was granted by an individual who at the time when the tenancy was granted occupied as his or her only or principal home another dwelling house which is either part of the same flat or part of the same building (see Housing Act 1988 section 1(l)(b)).
(iii) At all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who has occupied as his only or principal home another dwelling in the same flat or building.
(iv) The tenant was not prior to the grant of the tenancy an assured tenant of accommodation elsewhere in the same building.
There are periods of disregard after the sale of premises or the death of a landlord when the fact that there is no resident landlord living in the building does not mean that the "resident landlord" exception ceases to apply (see Part III of Schedule 1).
Compare Rent Act 1977 section 12 and schedule 2.
This is essentially a question of fact for the trial judge to consider and the Court of Appeal will generally be reluctant to overturn such findings - see eg Lewis-Graham v Conacher [1992] 02 EG 171, CA.
11. Crown tenancies ‑ but not premises managed by the Crown Estates Commissioners.
12. Premises let by local authorities, new towns residuary bodies, Urban Development Corporations, Development Corporations, Waste Disposal Authorities, Residuary Bodies, Fully Mutual Housing Associations, Housing Action Trusts etc.
13 Demoted tenancies.
14 Family intervention tenancies.
The provision of "Board" is not an exception (compare Rent Act 1977 section 7).
If one of the exceptions in Schedule 1 applies, the tenant has no security of tenure. Once a notice to quit has been served and has expired the tenant has no statutory protection, except, in some cases, for Protection from Eviction Act 1977 s3 which provides that it is unlawful for a landlord to evict such a tenant without taking court proceedings. The landlord need only prove that the contractual tenancy has been terminated. Note the form of notice to quit prescribed by the Notice to Quit (Prescribed Information) Regulations 1988 SI No.2201, although old forms of notice to quit may still be valid - Swansea City Council v Hearn (1991) 23 HLR 284 and, in another context Tadema Holdings v Ferguson (2000) 32 HLR 866, CA.
2. Security of Tenure
Section 5 provides that a periodic assured tenancy can only be brought to an end by a landlord by obtaining an order of the court or by surrender. [N.B. Housing and Regeneration Act 2008 s299 and Sched. 11 which will provide that assured tenancies only come to an end on execution of a warrant for possession.] Section 5(1)) makes it clear that notices to quit served by landlords have no effect upon periodic assured tenancies. Service of a notice to quit by a tenant may terminate an assured tenancy (Greenwich LBC v McGrady (1982) 6 HLR 36 and Hammersmith LBC v Monk [1992] AC 478).
If a contractual fixed term assured tenancy is brought to an end, other than by an order of a court or by surrender, a periodic assured tenancy (called a "statutory periodic tenancy") normally comes into existence immediately after the fixed term tenancy has come to an end. The basic rule is that the terms of the new statutory periodic tenancy are the same as for the former contractual assured tenancy (section 5(3)(e)). However section 6 provides a mechanism by which landlords and tenants may propose new terms.
3. Possession Proceedings against assured tenants
Housing Act 1988 s5(1) (as amended by the Housing and Regeneration Act 2008 and, ignoring demotion) provides
"An assured tenancy cannot be brought to an end by the landlord except by obtaining—
(i) an order of the court for possession of the dwelling-house under section 7 or 21, and
(ii) the execution of the order,
A. Notices of intention to bring proceedings
A landlord wishing to bring possession proceedings against an assured tenant should first serve a notice in the prescribed form informing the tenant that it is the landlord's intention to bring proceedings on one or more grounds specified in the notice. The form of notice is prescribed Form 3 in the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 SI No. 194. Para 2 states "any reference to a numbered form is a reference to the form bearing that number in the schedule to these Regulations, or to a form substantially to the same effect." A notice which complies with an old version of the (Forms) Regulations, but not the current version, is likely to be valid (Tadema Holdings v Ferguson (2000) 32 HLR 866, CA).
The notice must include:
(a) the text of the grounds for possession relied upon
A notice which under the heading "Ground 8" simply states "At least [two] months rent is unpaid." is not valid - Mountain v Hastings (1993) 25 HLR 427, CA. Although the full text of the ground as set out in Housing Act 1988 Schedule 2 may not have to be repeated verbatim,
"the words used [must] set out fully the substance of the ground so that the notice is adequate to achieve the legislative purpose of the provision. That purpose . . . is to give . . . information . . . to enable the tenant to consider what she should do and, with or without advice, to do that which is in her power and which will best protect her against the loss of her home." (per Ralph Gibson LJ)
and
(b) particulars of the grounds relied upon.
For example, if proceedings are to be issued under Ground 11, it is not enough for the notice merely to state "persistent rent arrears", without giving any figures of arrears or dates of late payment.
Kelsey HA v King (1995) 28 HLR 270, CA. (notice invalid due to insufficient particulars, but just and equitable to dispense with notice)
Marath v MacGillivray (1996) 28 HLR 484, CA (Section 8 notice stating as particulars of the arrears "At a meeting between the landlord and tenant on 24 July 1994 the arrears were agreed at £103.29 . . . Since that date no payments of rent have been made." No figure for the arrears as at the date of the notice was given. The Court of Appeal held that a notice from a landlord to a tenant complies with Housing Act 1988 s8 provided that "it is made clear . . . that more than [two] months rent is at the date of that notice unpaid and due and provided also that in some way or other that notice makes it clear either how much, or how the tenant can ascertain how much, is alleged to be due." It is not necessary for the notice to contain a schedule of the arrears.
Torridge DC v Jones (1985) 18 HLR 107, CA
South Bucks DC v Francis (1985) 11 CL 152, cc
but cf Dudley MBC v Bailey (1990) 22 HLR 424, CA.
The court has power to alter or add to the grounds specified in the notice (s8(2)). However this power can only be exercised if there is a valid notice - it is solely directed to the possibility of adding to or deleting grounds, not to correcting an invalid notice (Mountain v Hastings (1993) 25 HLR 427, CA).
Under s8(2) the court may allow particulars to be added if they have not been given earlier (Marath v MacGillivray - see above).
Schedule 2, Part IV makes it clear that it is sufficient if just one out of two or more joint landlords gives notice.
The required length of notices of intention to bring possession proceedings against assured tenants depends upon the ground for possession:
(a) Grounds 1 (owner-occupiers), 2 (mortgagees), 5 (ministers of religion), 6 (demolition, reconstruction), 7 (devolved under will), 9 (suitable alternative accommodation) and 16 (let as a consequence of employment) - two months notice or notice equivalent to the contractual period of the tenancy, whichever is longer, has to be given (section 8(4));
(b) Grounds 3 (“out of season holiday let”), 4 (“out of term student let”, 8 (two months rent arrears), 10 (rent arrears), 11 (persistent rent arrears), 12 (breach of obligation), 13 (waste or neglect), 14A (domestic violence) and 15 (ill treatment of furniture) - at least two weeks notice required (section 8(3)(b).
(c) If the landlord relies upon Ground 14 (nuisance or annoyance) proceedings may be begun immediately after service of the notice.
If a tenancy agreement provides for a longer period of notice, it appears that the landlord is bound by that longer period unless it is just and equitable to dispense with service of the notice (Northern British Housing Association v Sheridan (2000) 32 HLR 346, CA and see below).
Service of s8 notices
Enfield BC v Devonish and Sutton (1997) 29 HLR 691, CA.
Wandsworth LBC v Attwell (1995) 27 HLR 536, CA .
Proceedings must be begun within 12 months of service of the notice, otherwise a new notice must be served.
There is no need for a landlord of an assured tenant to serve a notice to quit as well as a notice of intention to bring proceedings (section 5(l)).
The court has power to dispense with service of a notice prior to the institution of possession proceedings if it considers it "just and equitable" to do so (s8(1)(b)) - but not in proceedings brought under Ground 8 ‑ i.e. 8 weeks' arrears (s8(5)).
In deciding whether it is just and equitable to dispense with service a court should "weigh all the factors before it" and "take all the circumstances into account, both from the view of the landlord and the tenant" - Kelsey HA v King (see above) (full particulars attached to summons, delay on part of tenant in applying to strike out possession proceedings)
See too Knowsley Housing Trust v Revell; Helena Housing Ltd v Curtis [2003] EWCA Civ 496; [2003] HLR 63.
See too McShane v William Sutton Trust (1997) 1 L&T Review D67, December 1997 Legal Action 13, (county court) where it was held that (1) although there is nothing to prevent a landlord from serving a s8 notice on the same day as proceedings are commenced; and (2) there is nothing in the rules preventing a landlord from applying ex parte to dispense with service of a s8 notice; (3) following Kelsey HA v King (1995) 28 HLR 270, CA it is not possible for a judge deciding whether or not to dispense with service to weigh up all factors from both points of view without the tenant being in court.
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