Ben Reeve Lewis concludes our short retrospective series on assured shorthold tenancies and the Housing Act 1988.
So here we are, a quarter of a century into the effects of the Housing Act 1988.
In olden times …
I first hit the housing law world in the late 1980s as a homelessness case worker. We used to have people in bed and breakfast awaiting offers of council and housing association properties.
Back in those days, despite what we used to refer to as a housing crisis (How naïve) homeless applicants would get three offers of accommodation.
They would fetch up at the offer and say “It’s OK but it’s too near the main road”, to which we would respond “Hey don’t worry about it. Hang around and we’ll get you another one”.
A week later, offer number two would arrive on the desk, the response being “Yeah OK, but the kitchen is a bit small”, the response being…..”Don’t worry about it, wait for number three”, and so on.
Sounds so benign huh?
Change is ushered in
Around the same time that the three offer policy devolved into a single offer the Housing Act 1988 came into force, with its Assured Shorthold Tenancies and market rents.
Even lodgers weren’t immune. Prior to the HA 88 lodgers were known as “Restricted Contract Tenants” and were entitled to a possession order just like anybody else. That’s all gone.
But the worst effects of tenant insecurity ushered in by the AST that everyone knows and loves did not really kick in until 1997.
The pre 1997 assured shorthold tenancy regime
Sure AST’s came into existence on the 15th of January 1989 but they weren’t the default tenancy back then. If a landlord wanted to create one they had to follow a specific legal procedure and serve a thing called a “Section 20 notice” along with the tenancy agreement, informing the tenant that it would be a short let only.
The trouble was that back then few landlords even knew what a Section 20 notice was, so people in housing advice land rarely saw them.
One of the first housing law courses I ever attended was run by the defunct SHAC (remember them?) where the trainer was soon to be Judge Nic Madge.
I recall he drew a diagram on the flipchart of a hardboiled egg, with the white being assured tenancies and the ovum/yolk being the AST which Nic advised was government thinking that an AST would be a small, specialist type of tenancy agreement that only a few landlords might want to grant. Hence the legal requirement for a section 20 notice to validate its existence.
A short term, no fault eviction type of tenancy not being a landlord’s preferred option?????? Dearie me…..innocent times.
Shooting fish in a barrel
What this presented frontline housing workers with was an opportunity to shoot fish in a barrel. 99% of people presenting with assured shorthold tenancy agreements between 1989 and 1996 did not have section 20 notices attached.
So the adviser’s job was to simply advise the landlord and tenant that they had failed to create a fabled AST, and automatic eviction rights therefore went down the plug-hole.
Government realised this by the mid-1990s so with the introduction of the Housing Act 1996 (Feb 28th 1997) the section 20 notice was ditched and the default tenancy became the AST.
The situation now
So nowadays, if you have no written tenancy agreement then you will automatically be presumed to hold an AST.
THAT is when the wheels started to come off for tenants wanting security, not 1989. Things got pretty much unarguable after that time.
Section 20s still count, if you entered into your agreement before the end of February 1997, but it is a rare tenant who keeps ring binders and file boxes in strict order from that far back, so proving the existence of an old S20 notice is incredibly difficult.
I still manage it sometimes when I ask the landlord or their agent for a copy in a strategically vague way, as if it is of little import. Many weren’t even born then so are unaware of the necessity of it.
Housing advice worker 1: agent: 0.
Flexibility v. security
I completely understand why landlords like ASTs but I do get annoyed when I read politicians and landlord groups cite AST’s being popular with tenants who want flexibility.
Most tenants don’t want flexibility, they want a home where they can put down roots and raise their kids. Perhaps young professionals like flexibility but the age of private tenants is rising by the day and when you get older it is security that you want, not flexibility.
Although undeniably AST’s protect landlords from unscrupulous tenants, there is a knock on effect for the community as a whole. A couple of years back I read somewhere that every 3 years, 40% of PRS tenants have moved. How does this help children’s education or the sustainment of communities?
TIme to end the see saw
Can I float out a bit of a heresy here? And say, why not change the law to make it easier for landlords to get rid of bad tenants whilst at the same time stopping people losing their homes when they have done nothing wrong?
Yes I know this is a big, sweeping statement, it would require a major re-write of the law, involving pulling apart a lot of basic legal tenets but we created these laws, surely we can re-jig them?
Prior to the Housing Act 1988 the law was restrictive and all the toys were in the tenant’s pram. The ’88 Act reversed this, but surely, as we progress into the 21st Century we need a landlord/tenant legal system that works for both parties?
Otherwise the situation will continue to see-saw, where one party can’t see their interests being advanced without the other side being on the down-slide and we end up in a “Four legs good-Two legs bad” scenario.
Time then, not for a new law so much as a re-think about the needs of landlords and tenants in 2013. Neither the Rent Act 1977 nor the Housing Act 1988 offers much in this way. 25 years?….Jeez, time for a major reappraisal.