Assured Tenanices

Assured shorthold tenancies

Assured shorthold tenancies (ASTs) are a type of assured tenancy. Most assured tenancies are automatically ASTs unless a notice has been served by the landlord stating otherwise.

An AST can be granted on a fixed term (for example, 12 months) or as a contractual periodic tenancy (for example, on a monthly basis). If the tenant remains in occupation of the property after the fixed term expires, a statutory periodic tenancy will arise.

The procedures for terminating an AST are governed by the Housing Act 1988.

Tenancy Deposit Scheme

If a tenant pays a rent deposit under an AST, the landlord must join a Tenancy Deposit Scheme (TDS) and provide the tenant with certain prescribed information about the TDS and the deposit. A TDS has two main objectives:

• To ensure that the deposit is protected and returned to the tenant at the end of the AST unless the landlord has a legitimate claim to withhold some or all of that deposit;
• To resolve disputes between landlord and tenants using alternative dispute resolution as opposed to pursuing a claim through the courts.

House in Multiple Occupation

If you are the landlord of a House in Multiple Occupation (HMO), it is important to check that your property meets certain licencing requirements:

• It is a criminal offence to control or manage an unlicensed HMO;
• Tenants have the right to make an application for a rent repayment order to reclaim rent paid to the landlord of an unlicensed HMO.

How can a tenant terminate an AST?

A tenant that wants to leave the property during the fixed term may be able to:

• Exercise a break clause in the tenancy agreement (if there is one);
• Negotiate a surrender with the landlord;
• Assign the tenancy or underlet the property to a new tenant (if this is permitted by the tenancy agreement).

There is no general right for a tenant to terminate an AST during the fixed term, in the event of a landlord’s breach. The tenant may, however, have a damages claim against the landlord.

We can provide expert advice about a tenant’s rights and restrictions under an AST, including the merits of a damages claim against a landlord. 

How can a landlord terminate an AST?

Depending upon the circumstances of the tenancy, an AST can either be ended by service of a section 8 notice or a section 21 notice under the Housing Act 1988. 

1. Section 21 Housing Act 1988:

   Under section 21, the landlord can terminate an AST at the end of the fixed term or periodic tenancy by giving the tenant at least two months’ written notice.

   This procedure allows landlords to regain possession of the property without giving any justifications and, if the relevant criteria apply, without the need for a court hearing. 

2. Section 8 Housing Act 1988:

   Under section 8, an AST can be terminated at any time, provided the landlord can rely on certain grounds set out in Schedule 2 Housing Act 1988. The landlord must serve notice on the tenant, the amount of which will depend on the grounds relied upon.

   This procedure is commonly used where the tenant has breached certain terms of the tenancy agreement, such as failing to pay rent.

What happens once notice has been served on the tenant?

If the tenant does not leave the property when the notice period under the notice expires, the landlord can apply for a court order for possession. Where the section 8 route is used, the landlord can also apply for a monetary judgment in respect of rent arrears.

If the tenant stays in the property beyond the date specified in the court order, the landlord must apply for either:

• A warrant for possession to instruct bailiffs to evict the tenants; or
• A writ for possession to instruct High Court Enforcement Officers to evict the tenants (this may result in a quicker eviction).

Service of the notice is an important part of regaining possession of a property as certain formalities must be complied with to avoid wasting time and costs. We can carry out this process on your behalf, including preparing and serving the notice on the tenant and applying for the appropriate orders.

Which licensing requirements apply to an HMO?

A property is an HMO if both of the following apply:

• At least 3 tenants live there, forming more than 1 household;
• The tenants share toilet, bathroom or kitchen facilities.

A property is a large HMO where the above conditions are met, and the property is occupied by 5 or more tenants. All large HMOs must be licensed.

Local housing authorities have discretion to extend the licensing regime to all HMOs (i.e., additional licensing), or even to properties that are not HMOs (i.e., selective licensing). It is therefore important to check the licensing regime adopted by the council in which the HMO is located.

What is the procedure to apply for a rent repayment order?

A rent repayment order (RRO) can be made in favour of tenants where a landlord has committed an offence set out in section 40(3) Housing and Planning Act 2016. Examples of these offences include illegal eviction or harassment, and the control or management of an unlicensed HMO.

An application for an RRO can be made by an occupier or a local housing authority. If successful, tenants can recover a maximum of 12 months’ rent paid to the landlord.

We can act for tenants making an application for an RRO, or we can represent landlords defending such a claim against them. 

What happens if a landlord has failed to comply with the requirements of a TDS?

There are two general sanctions on a landlord who fails to comply with the TDS requirements:

• The landlord may be prevented from recovering possession of its property by giving notice under section 21 Housing Act 1988;
• The tenant may make an application to the County Court. If successful, the court must order the landlord to pay the applicant a sum of money. Depending on the circumstances, the court may also order the deposit to be returned to the tenant or a TDS.

We can assist with such an application, as well as providing expert legal advice about your rights and restrictions as a landlord or tenant.

How should I deal with a dispute relating to tenancy deposits?

The tenancy agreement sets out the circumstances when all or part of the deposit may be retained by the landlord. Disputes may arise if there are disagreements on the amount of deposit a landlord can retain. 

A TDS is required to provide dispute resolution to tenants and landlords as an alternative to issuing court proceedings, but both the landlord and the tenant retain the right to go to court.

If the dispute has not been resolved through the TDS process, we can act on behalf of a landlord or a tenant in relation to deposit disputes.