Tenancy agreements

It is advisable to have a written tenancy agreement to avoid any disputes between landlord and tenant. It is not possible to use the County Courts accelerated possession procedure without a written agreement.

A tenant with an assured shorthold tenancy that began on or after 28 February 1997 does have the right to request a written statement from their landlord of the main terms of the tenancy, for example:

• The date the tenancy started
• The rent payable
• The length of any agreed fixed term

The request from the tenant for these details must be made in writing and the landlord should reply within 28 days. If the reply is not made within this time, then the landlord may incur criminal liability.

Where no written tenancy agreement exists and occupation (other than in the same building as the landlord) began after 28 February 1997 then the tenant is an assured shorthold tenant by default. Where occupation occurred before this date and the landlord does not live in the same building, it will be an assured tenancy.

The conditions of tenancy must be reasonable. Where a condition is unreasonable it may be ignored.

Landlord and tenant legislation exists to provide a legal basis for letting property and gives both landlords and tenants certain rights and responsibilities. The legislation is both extensive and complex.

This page gives a brief summary of the main issues but you should obtain detailed advice from your own solicitor or specialist organisation before setting up or ending a tenancy.

Assured tenancy

An assured tenancy was created under the Housing Act 1988 (as amended by Housing Act 1996) and can only exist if the tenancy was created after 15 January 1989.

If the assured tenancy is created after 28 February 1997 then the landlord must give the tenant a special notice telling him the tenancy is assured.

If the property is let on an assured tenancy, the tenant has the right to remain indefinitely in the property, unless the landlord can prove in a County Court that he has grounds to bring the tenancy to an end. To do this, the landlord must show that he has served the correct notice requiring possession on the tenant.

Examples of these grounds are:

• the tenant is equivalent to eight weeks (if rent is charged weekly) or two months (if rent is charged monthly) in arrears
• the tenant has damaged the property
• the tenant has broken one or more of the terms of the tenancy agreement, except the obligation to pay rent

Assured shorthold tenancy

An assured shorthold tenancy is a variation of an assured tenancy. This is the type of tenancy most tenants will have. A shorthold tenancy can only exist if it began after 15 January 1989. Where it was created between 15 January 1989 and 27 February 1997, the tenant must have been informed by being served with and signing a section 20 notice, before signing the tenancy agreement. If no notice was served it will be an assured tenancy. Since 28 February 1997 all new tenancies will be shorthold unless the landlord states otherwise in writing.

Where the period of the assured shorthold tenancy has expired, the tenancy will continue indefinitely until the landlord or tenant gives notice.

The landlord usually has a right to repossess the property without giving any grounds at any time after any fixed term comes to an end or at any time during a contractual or statutory periodic tenancy. You must give at least 2 months’ notice of requiring possession. Notice can be given at any time during the fixed term, but a landlord cannot apply to the court before the end of the fixed term, or the last day of a tenancy/rental period if the tenancy is on a periodic basis (providing it is at least 6 months since the start of the original tenancy).

A 2 months’ notice may be hand written but it must state that possession is required under section 21 of the Housing Act 1988. A landlord can apply to the court to start proceedings as soon as the notice requiring possession expires. Section 21 can not be used where a house is being occupied contrary to the Licensing Requirements of the Housing Act 2004 (further information on licensing is available from the Private Rented Team) or where a deposit is held contrary to the requirements of the tenancy deposit scheme.

Provided there is a valid tenancy agreement, the accelerated possession procedure can be used this means that there is no need to have a court hearing. If there are grounds for possession eg rent arrears, breach of tenancy agreement, damage to the property or furnishings, a landlord can apply to the County Court to seek possession within the 6 months/fixed term period.

A specific form for serving notice must be used in this case (section 8 notice).

A valid notice must be served in both cases informing the tenant of the landlord’s intentions, giving the correct notice period. This is usually between 2 weeks and 2 months.

Tenants may also seek to leave a tenancy within the fixed term if the landlord has breached terms of the tenancy agreement.

Although the Section 21 route may be easier, there can be advantages in using Section 8; this may assist in the recovery of outstanding rents etc.

Protected shorthold tenancies

These tenancies would normally have been granted before 15 January 1989 and would be covered by the Rent Act 1977. If a landlord has a tenant who has lived in accommodation since before this date, legal advice should be sought before attempting to change tenancy terms and conditions.

Resident landlord

A resident landlord is a landlord who lives in the same property as the tenant and has done so since the start of the tenancy. This can be either:

• Where the landlord and tenant share some element of the accommodation (eg bathroom or kitchen)
• Where there is some degree of self-containment (each has their own bathroom and kitchen)

If accommodation is shared, then the landlord needs to give the tenant reasonable notice to leave the property. If the landlord and tenant do not share facilities then the landlord should serve a written notice requiring possession of the property and he will be required to obtain a County Court possession order if the tenant has not left at the end of the notice period.

[Back to top]