This is a question to the blog clinic fast track from Martha (not her real name), who is a landlord in England.
I let a house in December 1981 on a Protected Shorthold Tenancy. The tenants are still there & have committed no breach, but I wish to take back possession.
In February 2016, at my request, they signed a new Assured Shorthold Tenancy. They have been told that they now have a protected tenancy and the right to remain. Am I able to repossess, and if so, how do I go about it, please?
Answer
Protected shorthold tenancies were the precursor to the Assured Shorthold Tenancy (AST) that we are all familiar with.
They were brought in by the Thatcher government in the Housing Act 1980 and were succeeded by ASTs in the Housing Act 1988. So, no new protected tenancies could be created after 15 January 1989.
There were a number of conditions for the creation of a Protected Shorthold Tenancy:
- The term must have been not less than one year and not more than five years
- There was no break clause allowing the landlord to end the tenancy before the end of the first fixed term
- The landlord must have given the tenant a ‘Notice of Protected Shorthold Tenancy’ in the prescribed form, before the tenancy started
- Some tenancies had to have a registered fair rent. Those within Greater London and granted between 28 November 1980 and 3 May 1987 and outside Greater London granted between 28 November 1980 and 3 May 1987. It looks as if this would have applied to your tenancy.
You will need to have complied with all of these.
Changes on issuing a new tenancy
I have (hopefully) good news for you. As your tenants have signed a new tenancy agreement, 34(3) of the Housing Act 1988 provides that their tenancy will have converted to an AST. Assuming that is that you did not give a notice saying this would not happen (which I assume you did not do).
So, provided you had correctly created the Protected Shorthold tenancy in 1981, it should now be an AST. Allowing you to evict using the ‘no fault’ section 21 procedure.
But did you have a protected shorthold?
Your tenant’s adviser has probably advised them that you did not properly create the Protected Tenancy in 1981. Which would mean that the tenancy has always been a Protected Tenancy under the Rent Act 1977 (and if so, this is something which cannot be changed later).
It looks as if these tenants will defend if you issue proceedings under section 21. So you need to be in a position to prove, to the satisfaction of the Judge on the balance of probabilities, that you complied with all those conditions back in 1981. Meaning that a protected shorthold tenancy WAS created.
So for this, you will need to have;
- A copy of the original tenancy agreement, signed by the tenants and
- A copy of the Notice of Protected Tenancy served back in 1981 and proof that it was served on the tenants before the tenancy started and
- Proof that the tenancy had a fair rent registered at that relevant time
Note that under s55 of the Housing Act 1980, the Judge does have the power to waive the requirement for service of the notice, if he considers it ‘just and equitable’ to do so.
However, this would mean a contested case. This would take a long time and could be expensive. If they are financially eligible, your tenants may be entitled to Legal Aid. If you lost the case, you would be ordered to pay your tenants’ legal costs – which could be expensive, particularly if they get legal aid.
Conclusion
I suspect that the tenants have been advised that you did not set up the protected shorthold tenancy properly in 1981 and that they, therefore, have (and have always had) a Rent Act protected tenancy.
You need to check your paperwork and see whether you would be able to counter this.
I would strongly advise that if you decide to proceed, you use solicitors and get them to advise thoroughly on your case first.
It is essential that you use solicitors who are familiar with this work. Such solicitors are quite hard to find as Protected Shortholds ended in 1989 – before many solicitors today were even born!
However, any of the solicitors on our Landlord Law Telephone Advice panel should be able to help.