Q&A: If an assured tenant signs a new tenancy agreement, does it remain an assured tenancy or become an assured shorthold tenancy?
Section 19A of the Housing Act 1988 (HA 1988) provides that an assured tenancy entered into after the day section 96 of the Housing Act 1996 came into force (28 February 1997) is automatically an assured shorthold tenancy. For this reason the vast majority of new tenancies entered into in England are assured shorthold tenancies. HA 1988, s 19A is however subject to the exceptions in HA 1988, Sch 2A.
HA 1988, Sch 2A, para 7(1), provides that an exemption to the automatic application of assured shorthold tenancies is where an assured tenancy is granted to someone who immediately before the grant of the tenancy held an assured tenancy, either alone or jointly with others. This is subject to the requirement that the landlord remains the same, though again in cases where there are joint landlords it is sufficient that only one of the landlords was the landlord under the old tenancy.
This means that a tenant renewing their tenancy of the same premises with the same landlord will not be required to take a tenancy with weaker security of tenure provisions (HA 1988, s 21 does not apply to assured tenancies) as a result of HA 1988, s 19A. If a joint tenant moves out, then the remaining tenant will not lose their right to an assured tenancy.
The other requirement for the exemption set out in HA 1988, Sch 2A, para 7(1) to apply is that no notice is served pursuant to HA 1988, Sch 2A, para 7(2). This notice must be served before the assured tenancy is to be entered into, must be served by the tenant(s) on the landlord(s) (if there are joint landlords, service on one is sufficient) and state that the tenant(s) wants the new tenancy to be an assured shorthold tenancy.
If no notice is served, then provided that the tenancy is of the same premises as the previous assured tenancy and at least one of the tenants and the landlords are the same, then the tenancy will not be an assured shorthold tenancy. It is important to note the requirement that the tenant must have held an assured tenancy ‘immediately’ before the grant of the new tenancy. A short delay may be enough to mean that the exemption is not applicable.
This content was written by Oliver Park at Charles Russell Speechlys and was first published on the Lexis Nexis Ask Forum on 13 August 2020. For more information, please contact Oliver or your usual Charles Russell Speechlys contact.
Marcus Stuttard will provide his unique insight and a "state of the nation" market update.
Dismissal for refusing vaccination found to be fair
An employment tribunal found that the summary dismissal of a care assistant who refused to be vaccinated, was fair.
UK Construction Law Update: What Happened in 2021? What can we expect in 2022?
The panel will cover a number of key construction law topics to ensure you stay in the loop
A guide to buying residential property in England
An overview of the conveyancing process when acquiring residential property as well as some key points to consider.
To flex or not to flex: comparing traditional offices with flexible office space
Restrictive Covenants Declaration that a restrictive covenant is no longer enforceable
Emma Preece explores restrictive covenants.
Charles Russell Speechlys advises Topland Group on two key transactions
Topland Group is one of the largest multi-billion pound, privately owned investment groups.
Property Patter: What can the property world expect from Parliament and the courts in 2022
What’s ahead in the world of property law during 2022
Environmental Land Management: Whose carbon is it anyway?
Everything you need to know about Environmental Land Management Schemes.
Top 10 Tips for dealing with Easements
Everything you need to know about dealing with Easements.
Emma Humphreys writes for Estates Gazette on the use of alternative dispute resolution in property disputes
The difficulties with court proceedings are becoming more pronounced as the courts struggle to deal with their backlog of cases.
The changing leasehold landscape: Government consultation on reforming the leasehold and commonhold systems in England and Wales
Lauren Fraser and Laura Bushaway explore the changes occurring in the leasehold landscape process.
Michael Gove’s Letter to Residential Property Developer Industry to Fund Unsafe Cladding Remediation
James Souter quoted by Estates Gazette on the Supreme Court’s ruling to overturn the Gala Unity decision
Leaseholders who acquire the right to manage a building are not exempt from paying for shared services if part of a larger estate.
Laura Bushaway writes for the Estates Gazette Legal Q&A on property guardians and ASTs
Laura Bushaway considers property guardians and possession proceedings.
The green lease: back for good?
Emma Humphreys and Phil Webb look at the growing interest in green lease clauses.
Expert Shopping – Seeking to rely on a new expert
A practice known as expert shopping may see the court order the disclosure of the previous experts.
A not-so-festive period for hospitality: Government delivers funding to local authorities as hospitality industry suffers Christmas losses.
The pandemic’s 'depressing' impact – early signs of the courts’ approach to determining rent
On the employment horizon – 2022
We set out some of the key changes we anticipate over 2022 in employment law, and how to best prepare for them.