Ordinary assured tenancies

Until 28th February 1997 tenancies which did not fall within certain categories, such as business tenancies, agricultural tenancies or tenancies with a high rent or resident landlord, were automatically deemed to be an assured tenancy unless the landlord served a special notice on the tenant that it was not. Such an ordinary assured tenancy gives the tenant greater security of tenure, as the tenant has the right to remain in the property unless the landlord can prove one of the seventeen grounds for possession provided by the Housing Act 1988. The landlord does not have an automatic right to repossss the property when the tenancy comes to an end. At the end of the tenancy, a statutory periodic tenancy will arise automatically if no other tenancy has been agreed.

Assured shorthold tenancies

Since 28th February 1997, however, the default tenancy is an assured shorthold tenancy. If a tenancy is not to be an assured shorthold tenancy, the landlord must give the tenant a notice saying that the tenancy is not an assured shorthold tenancy. The notice must be given before the beginning of the tenancy, or alternatively can be given by including a simple declaration in the tenancy agreement to this effect. A notice can also be served after the commencement of a tenancy if the parties wish to agree that it is an ordinary asured tenancy.

Such a tenancy will have advantages for the tenant, as they uniquely allow a tenant to apply to a rent assessment committee at the beginning of the tenancy to have the rent reduced if it is significantly higher than the rent for comparable properties. A tenant may, if his tenancy started on or after 28th February 1997, apply to the committee only once and this must be within the first six months of the original tenancy.

The main advantage to the landlord of letting property on an assured shorthold tenancy is that, although the tenant still has rights of tenure as the landlord cannot repossess the property unless he can prove particular grounds, a further and very significant ground is available. This entitles and guarantees the landlord the right to regain possession at the end of the fixed term subject to the statutory notice requirements that following the expiry of six months from the start of the original tenancy agreement, the landlord may recover possession of the property provided he has given the tenant two months notice that he is going to do so.

If the assured shorthold tenancy is a periodic tenancy, the landlord must give at least two months notice and the notice must be dated to expire on the last day of a tenancy period. The length of the notice period may be longer than two months if the period of the tenancy is longer than monthly, such as where the tenancy is quarterly.

Grounds for possession

The landlord can only seek possession of his property from an assured tenant if they can prove that one of the seventeen grounds provided by the Housing Act 1988 is met. Some of these grounds are mandatory, so the court must grant a possession order where a landlord proves that the grounds applies, whilst others are discretionary and the court will only grant a possession order if it thinks it is reasonable to do so.

The first five grounds can also be used only if the landlord notified the tenant in writing before the tenancy started that they intended to ask for the property back at some point on the basis of one of these grounds. However, if the court considers that there were good reasons for not serving notice the court may grant possession on the first two grounds even where the landlord did not give the tenant this prior notice. 

Mandatory grounds on which the court must order possession
1) The landlord used to live in the property as their only or principal home, or the landlord or their spouse requires the property as their main home. This ground cannot be used where the landlord or the previous owner of the property bought the property after the tenancy started.

2) The mortgagee is claiming possession (only where the mortgage must predate the tenancy). This ground will be most used where the landlord has defaulted on mortgage payments and the mortgagee wants to sell the property to pay these off.
3) The tenancy is let for a period not exceeding 8 months and was previously let for the purposes of a holiday within the last 12 months (so the previous letting was an off-season letting)

4) The tenancy is a letting for 12 months or less, and was previously let by a specified educational establishment to students during the previous 12 months (so the previous letting was an out of teerm-time letting)

5) The property is held for use by a minister of reigion and is required for this purpose

6) The landlord intends to develop the property (the development must be substantial and unable to be done while the tenant is in occupation of the property). This ground cannot be used where the landlord or a previous owner of the property bought the property with an existing tenant, or where the work could be carried out without the tenant having to move. The tenant’s removal expenses will have to be paid.

7) The former tenant has died (the former tenant must have had a contractual periodic tenancy or statutory periodic tenancy, and must have died within the twelve months preceeeding the possession proceedings). This ground cannot be used where a person with a right to succeed to the tenancy is living in the property).

8) The tenant owed at least two months rent when the landlord served notice that he wanted possession, and the tenant still owes two months rent at the date of the court hearing.

Grounds 1 to 5 are ‘prior notice’ grounds, and can only be used where the landlord gave the tenant notice in writing before the beginning of the tenancy that he might seek possession on this ground.

Discretionary grounds on which the court may decide to order possession
9) Suitable accomodation is available for the tenant, or will be when the court order takes effect. The tenant’s removal expenses will have to be paid.

10) The tenant was behind with his rent when the landlord served notice that they wanted possession and when they began court proceedings

11) Even if the tenant was not behind with his rent when the landlord started possession proceedings, he has persistently been behind with his rent

12) The tenant has broken one or more of his obligations under the tenancy agreement

13) The condition of the premises or any of the common parts has deteriorated because of the behaviour of the tenant, his subtenant or any other person living there

14) The tenant or someone living in or visiting the property has been guilty of conduct which is, or is likely to, causing a nuisance or annoyance to neighbours, or that a person residing or visiting the dwelling house has been convicted of using the property, or allowing it to be used, or immoral or illegal purposes or has committed an arrestable offence in or in the locality of the dwelling house

15) The condition of the furniture has deteriorated because it has been ill-treated by the tenant, his subtenant or someone living there

16) The tenant was granted thr property in order to properly fulfil their employment duties and is no longer employed by the landlord

17) The landlord was induced to grant the tenancy by a false statement made knwoingly or recklessly by either the tenant or a person acting at the tenant’s instigation.

Seeking possession

The landlord must give the tenant notice that he intends to go to courtt to seek possession of the property. In respect of grounds 3, 4, 8, 10, 11, 12, 13, 15 and 17 at least 2 weeks notice must be given, and for grounds 1, 2, 5, 6, 7, 9 and 16 the period of notice given must be at least 2 months. Where ground 14 is used, the landlord can start proceedings as soon as he has served notice of his intention to seek possession on the tenant. If the tenancy is on a contractual periodic or statutory periodic basis, the notice period must end on the last day of a tenancy period. As soon as the notice to the tenant of the landlord’s intention to apply has expired, the landlord can apply to the court to start proceedings. The tenant is not obliged to leave the property until there is a court order requiring him to do so.

Where the landlord seeks possession on grounds 1, 3, 4 or 5, they may be able to apply to the county court to use an accelerated possession procedure where the court makes its decision by considering the documents that the landlord and tenant provide, unless it decides that a hearing is required. However, this straightforward and inexpensive procedure for getting possession without a court hearing can only be used where there is a written tenancy agreement and the landlord has given the tenant te required notice that he is seeking possession.

The landlord can only seek possession during a fixed term of an assured or assured shorthold tenancy if the court considers that ground 2, 8, 10 to 15 or 17 applies, and the terms of the tenancy allow for it to be ended on any of these grounds.
If respect of an assured tenancy, the landlord can seek possession on any of the seventeen grounds once the fixed term has ended. It is for the court to decide whether one or more of the grounds for possession apply.

The existance of these statutory grounds greatly increases the ability of the landlord to recover possession of their property, but the requirement of notice ensures that the position of the tenant is improved as the tenant is made aware that their landlord is seeking possession. The 'prior notice' grounds further improve the tenant's security, as he will be told before the tenancy has begun that the landlord may seek to recover possession. The mandatory grounds also ensure that both parties are aware that a landlord seeking possession on any of those grounds will be granted it. As a result, the position of both the landlord and tenant are strengthened; the landlord as he is given greater rights, and the tenant as he is given greater knowledge.