Assured shorthold tenancies (unlike assured tenancies) do not give a tenant long-term security. They are not regulated by the usual rent controls, and a landlord may charge rent at more or less any amount that a tenant will agree. Most residential tenancies will be assured shorthold tenancies, unless it is written into the agreement that it is not an assured shorthold tenancy or the landlord serves a notice to say it is not to be an assured shorthold tenancy. If an assured shorthold tenancy was granted before 28th February 1997, then the landlord must have served a notice which states that the tenancy will be an assured shorthold tenancy.
There are some types of tenancies which cannot automatically become assured shorthold tenancies:
* Assured tenancies taken over by a partner or family member of the original tenant after that tenant’s death;
* Tenancies that were previously secure tenancies;
* Long residential tenancies, which ended and became assured tenancies;
* When the landlord of a tenant, who has an assured tenancy, grants a new tenancy;
* The tenancy is already an assured agricultural tenancy.
Student lets will usually be assured shorthold tenancies.
A landlord’s responsibilities under a shorthold tenancy are governed by the Landlord and Tenant Act 1985. Under the Act, landlords must ensure that the property is in a safe and habitable condition. Any repairs that need to be made must be paid for by the landlord, rather than the tenants. Although the landlord is allowed to calculate the rent to include the cost of repairs, the landlord cannot add charges to compensate for works completed.
Obtaining possession of properties let as assured shorthold tenancies
If a tenant refuses to vacate when a tenancy has come or been brougt to an end an order of the court must first be obtained before a landlord is entitled to take back possession of a property let as an assured shorthold. However, this will usually be given automatically unless special circumstances arise, and often an accelerated possession procedure will be available. This procedure will only apply, however, to claims to recover possession when the fixed period of the tenancy has come to an end and the claim is just for possession and not rent arrears. There must be a written tenancy agreement in existence, and a section 21 notice requiring possession must have been served on the tenant, giving 2 months notice, which expired before the application was made to the court.
Applications for possession must be made to the county court in the district where the property is located. It is necessary to exhibit a copy of the section 21 notice requiring possession with the court papers. Application are made using form N5B.
A tenant may file a defence within 14 days of receiving the application for possession. If the tenant fails to file a defence within this period, the landlord can request that the possession order be made forthwith and without a hearing. A possession order will usually take affect immediately, unless the court is satisfied that the tenant has made out a case for exceptional hardship, in which case possession can be delayed for up to 6 weeks.
When a tenant is in breach of any of the conditions of an assured shorthold tenancy, the landlord can apply for possession notwithstanding the period of the tenancy not having expired. The usual breach is non-payment of rent. A notice of intention to seek possession must be served before issuing proceedings. How much notice needs to be given will depend on which ground the landlord uses as a reason for getting a possession order.
Notice must be given in a Section 8 Notice, which will tell the tenants their statutory rights. Proceedings must start within 12 months of service of the notice, otherwise a new notice must be served. If the court is satisfied that a landlord is entitled to possession on one of the statutory grounds or because the tenancy has come to an end, then the court must grant a possession order. This can take effect within 14 days, or can be extended for up to 6 weeks in the case of exceptional hardship. The court also has discretion, once it has made a possession order to ‘stay’ or ‘suspend’ the possession order, postpone the date for possession until such time as it thinks fit, or to adjourn the court proceedings. If an order is suspended or stayed, or proceedings are adjourned, the court will usually make an order that arrears are paid in the meantime.
If a possession order is made, then a tenant may have the following options open to them:
• Apply to set aside the possession order. Good reasons may include that the tenant was not present at court when the order was made and has a defence. Otherwise, that new evidence has come to light since the possession order was made. The application is made to the county court which made the order, and must be accompanied with a witness statement explaining why the order should be set aside.
• Appeal from the order of the district judge to a circuit judge. Leave will first be required.
• Apply to suspend or stay any warrant taken out to enforce a possession order. This is usually done to buy more time in order to pay the arrears or to buy more time to apply to set aside the order.
If a tenant wishes to stop an eviction by a bailiff, then he must act quickly, and apply for a stay of execution. The tenant may be able to delay possession proceedings if, for example:
• The court paperwork produced by the landlord is defective;
• The landlord has served the tenant with a possession notice which is not correct, either because the information on it is incorrect or the wrong form has been used or the notice has a ground for possession written on it and the landlord relies on a different ground at court. However, since the Housing Act 1996 came into force, courts now have discretion to allow possession, even if the landlord did not serve a proper notice of possession;
• The landlord started court proceedings earlier than they were allowed to by law;
• The tenant did not receive any notice of possession from the landlord before they started proceedings. However, the court can still make a possession order, although the tenant will be able to argue that it would be unfair for him to be evicted without notice;
• The landlord has not proved the ground they are relying on, or a condition has not been satisfied;
• The tenant should be given another chance and the court proceedings should be put back to allow the tenant to comply with a part of their tenancy agreement that has been breached – for example, failure to pay rent. Or that the possession order should be ‘suspended’ so that it only comes into effect if the tenant breaks a stated promise or agreement with their landlord.
Where a landlord is seeking arrears of rent, the tenant may be able to avoid paying some or all of this if the landlord owes the tenant money. For example, the tenant has overpaid the rent previously and not received a refund.