(A series looking at possible defences to section 21 claims)
Its not an AST
You can only use the accelerated possession proceedings for assured shorthold tenancies.
On the whole this is not a problem. Most tenancies ARE assured shortholds. However there are other kinds and it is as well to know what tenancy type you have so you don’t make a mistake.
Assured shorthold tenancies are tenancies which fall under the provisions of the Housing Act 1988 which sets out how they operate. However some tenancies fall outside the provisions of the act and are governed by the underlying ‘common law’.
Common law tenancies
These are mostly
- Tenancies where there is a resident landlord
- Tenancies where the tenant is a limited company
- Tenancies where the annual rent is under £250 (£1,000 in greater London) or over £100,000
- Tenancies where the tenant has lost the protection of the act, for example where the whole of the property has been sublet.
There are others but those are the main ones.
The procedure also cannot be used for assured tenancies. Assured tenancies are tenancies which are governed by the provisions of the Housing Act 1988. Assured SHORTHOLD tenancies are a type of assured tenancies – the difference being mainly that they have the benefit of the section 21 no fault ground for possession.
So it follows that assured tenancies don’t. So if a tenancy is actually an AT then the accelerated procedure must fail.
This will generally only happen with older tenancies. Since 18 February 1997 all tenancies under the act have been ASTs by default – if a landlord wants to create an AT he has to serve a notice on the tenant to this effect. As is often done with tenancies in the social rented sector.
However with tenancies starting between 15 January 1989 and 28 February 1997, there were conditions which had to be complied with before an AST could be created. One of these was that landlord had to serve a section 20 notice on the tenant before the tenancy was entered into.
An example of this in action
Quite a few years ago I was asked to bring proceedings for possession by a Mr Patel (not his real name). The tenancy had, he said, first started in 1996 and he provided a copy of a tenancy agreement and a section 20 notice which had been served quite properly on the tenant two days before the tenancy was signed.
I therefore went ahead and issued proceedings for possession as requested.
However when the tenant put in her defence a different story emerged. She said that she had first signed a tenancy agreement for the flat in 1995 and produced a copy of the tenancy agreement as proof.
A section 20 notice served before a second tenancy agreement was no good, as it would not serve to turn an existing AT into an AST. I wrote to Mr Patel sending him a copy of the defence and documents and asking him for a copy of the section 20 notice served prior to the first tenancy agreement in 1995. I never heard from him again.
So far as I am aware the tenant is probably still living there.
The final thing to mention here is that the occupier may not have a tenancy at all. He may have a license. For example see my post yesterday about this.
The landlord won’t have a problem getting an order for possession (provided the fixed term has ended) but the procedure is quite different – a section 21 notice will be ineffective and you cannot use the accelerated procedure. So any claim made using that procedure will fail.
This series will continue next week with another defence.