Ending an Assured Shorthold Tenancy
Assured Shorthold Tenancies are subject to strict requirements for termination under the Housing Act 1988.
Assured Shorthold Tenancies must be for an initial minimum term of 6 months from the date they are granted. After that, they may be renewed for further periods of time, or as is more often the case, left to continue on a periodic basis (usually month by month). When an Assured Shorthold Tenancy is outside of its contractual term, it is called a “statutory periodic tenancy”; the effect of the Housing Act 1988 is that the tenancy will continue on the same terms as those initially agreed between the landlord and tenant.
So how might a landlord end an Assured Shorthold Tenancy?
During the initial tenancy term.
s.8 notice: this notice may be served at any time (including within any initial minimum term) and would require the tenant to leave the property within a time set out in the notice. However, this notice can only be served where the landlord has certain statutory grounds available for doing so, such as where the tenant is in rent arrears, has caused damage to the property or is otherwise in breach of the tenancy agreement. It is also necessary that, for this kind of notice to work, that the tenancy agreement allows termination on these s.8 statutory grounds and so a well drafted tenancy agreement is vital to protect a landlord.
After the initial tenancy term.
s.8 notice: this notice may be served at any time, but it still requires one of the s.8 statutory grounds to be applicable.
s.21 notice: this is a special kind of notice unique to assured shorthold tenancies. It requires a minimum of two months notice to be given to the tenant requiring him to vacate on a certain date. The notice can be served on the same day as when the tenancy is actually created (and often is by well prepared landlords and managing agents) but the date for possession can be no earlier than the end of the initial contractual term.
There are two types of s.21 notice, which following the Court of Appeal’s decision in Spencer -v- Taylor [2013], is now largely confined to what is known as the s.21(1)(b) notice. This notice is fairly relaxed, and does not have to:
(a) end of a particular day;
(b) be in any prescribed form; or
(c) provide any grounds for possession.
As a matter of good practice, the notice should, however, state that it is served under s.21 of the Housing Act 1988 (although there is no strict legal requirement to do so).
No order for possession based on a s.21 notice will be made unless and until (i) at least 2 months have passed from the date the notice was served and (ii) the initial contractual tenancy has ended.
Which notice would I serve?
Most importantly, there is no defence to the proper service of a s.21 notice when an Assured Shorthold Tenancy is being ended. Landlords will, therefore, often serve the notice at the very start of entering into the Assured Shorthold Tenancy so as to make sure there is no dispute about it ever being provided.
There are defences to a s.8 notice, and where these are raised by a tenant, the Court will often give directions at the first Court hearing for them to progress to trial for determination. This procedure can, therefore, be long winded compared to the s.21 process and is often avoided (or at least undertaken together with the s.21 procedure) where the s.21 procedure is available and otherwise suitable.
Court Proceedings – What happens after the Notice?
A tenant can never be evicted from an Assured Shorthold Tenancy without a Court Order authorising that. A landlord cannot exercise rights to “self-help” by changing locks or disconnecting supplies to the property: to do so would be a criminal offence. Fortunately, for those using the s.21 process, there is an accelerated procedure, where the Court can be expected to make an Order for Possession based solely on the filing of the appropriate documents evidencing the tenancy and its terms. Those relying on the s.8 process may be in for a much more lengthy wait if the proceedings are defended on grounds that may have some merit.
Disrepair claims are often cited by tenants as grounds for opposing a s.8 notice, although as noted above, they cannot be a defence to a s.21 notice.
Rent arrears are a common basis upon which landlords with to regain possession of the properties let on an Assured Shorthold Tenancy. However, where a landlord has not undertaken required repairs, such as for excessive damp resulting in conditions which render the property unsuitable for habitation, the tenant may have a counterclaim against the landlord, which if successful, may be offset (or completely extinguish) against the rental sums due. This is important, as in the case of rent arrears, there must be 2 months of arrears outstanding before a Court is compelled by law to order possession be granted. For any sum less than 2 months arrears, the Court has a complete discretion as to whether to order possession or not.
For further information, please contact Craig Kelly at craig.kelly@csklegal.co.uk.
