This myth is based on reality and is due to the history of the assured shorthold tenancy (AST).
Protected tenancies under the Rent Act 1977
When the Housing Act 1988 first introduced ASTs, people were still used to the old Rent Act system of protected tenancies (although protected shortholds had been introduced by the 1980 Housing Act, and there were quite a few around).
Under a Rent Act protected tenancy, a tenant instantly obtained long-term ‘security of tenure’, and was entitled to stay there (so long as they behaved themselves), effectively forever, at a ‘fair rent’ (what a landlord client of mine once described as ‘expropriation without compensation’).
Assured Shorthold tenancies before February 1997
The Housing Act 1988 changed all that, and with an AST, tenants could be evicted after the end of the fixed term without the landlord giving any reason at all, provided the proper procedure was followed. They could also charge a market rent.
So, when drawing up the legislation, Parliament felt that tenants need to be warned about the type of tenancy they were entering into, and therefore imposed conditions on the creation of an AST. These were set out in section 20 of the Act, which said that:
- The tenant (who must be a new tenant, an AST could not be granted to an existing protected tenant of the landlord) had to be served a notice telling him he would not get security of tenure (this became known as a section 20 notice)
- The fixed term must not be less than six months, and
- The landlord did not have the power to end the fixed term during that six month period (i.e. there could not be any break clause in the tenancy agreement).
Although Parliament was trying to be fair, in fact, this rule lead to quite a few injustices (as often tends to happen in the ‘Nanny state’). Professional landlords and agents generally got things right. However, many amateur landlords did not appreciate the need for the section 20 notice to be given in advance and so created assured tenancies by mistake.
In the 1990s and early 2000s, I had quite a few landlords consult me about evicting their tenants, where nothing could be done, even though, in many cases, the tenancy had been granted on the understanding that it would be an AST. This was because the landlord had given all the paperwork to the tenant all at the same time, meaning that the s20 notice had not been handed over before the tenancy had been entered into, as required by the Act. Therefore the tenancy could not be an AST.
Assured shorthold tenancies after February 1997
Presumably, this filtered through to our lawmakers, because in 1996, when the Housing Act 1996 was passed, this requirement was done away with for new tenancies (although it still applies to older tenancies). By then, everyone was used to ASTs anyway and arguably did not need the protection of the section 20 notice.
From 28 February 1997, when this part of the 1996 act came into force, (virtually) all tenancies were or will now be an AST automatically, and there is no need to serve a section 20 notice anymore.
So now you can have a tenancy fixed term for as short a period as you wish. Most are for six months, but you can have a tenancy for a week, a month, three months and two days, whatever you want.
The situation today
There have been a number of changes to the rules since I first wrote this post in 2009. Under the rules brought in 1997 landlords could not be awarded an order for possession under section 21 during the first six months of the original tenancy. This changed with the Deregulation Act 2015 which provided that no section 21 notice could be served during the first four months of the original fixed term -meaning that the earliest a landlord could apply for a possession order is just after six months from the start of the tenancy – assuming the fixed term had ended by then.
So although it is still perfectly possible for an AST to be created for a very short fixed term – one week even – this is only enforceable by the tenant.
So the tenant can move out at the end of the fixed term without penalty. However, if the tenant decided to stay on, there is nothing the landlord can do to prevent this – even though this may be in breach of the tenant’s agreement with the landlord to move out at the end of the short fixed term.
The only way a landlord can force a tenant to vacate is by obtaining a Court Order for possession and then instructing the County Court Bailiffs or the High Court Enforcement Officers. Which could take the landlord up to a year (or maybe longer).
What about Wales?
The Housing Act 1988 and assured and assured shorthold tenancies no longer apply in Wales, with effect from 1 December 2022 when the Renting Homes (Wales) Act 2016 came into force. However, the situation in Wales is very similar.
A short fixed term can be given, but this is only enforceable by tenants. Landlords have to wait for 18 months until they can use a no-fault ground for possession against their ‘contract holders’. It may actually be better for landlords to grant a periodic contract from the start, as their right to use the no fault ground will commence a little earlier. You can see my posts on the new Welsh laws here.
This post is part of my urban myths series. You can see the rest of the series here.