FREE CHAPTER from ‘A Practical Guide to Security of Tenure in the Social Housing Sector in England’ by Patricia Tueje

CHAPTER TWO – OCCUPIERS’ STATUS

3 – TENANCY OR LICENCE

Another factor affecting security of tenure is whether an occupier has a tenancy or a licence.

Occupiers in the social housing sector generally have more protection than those in the private rented sector. Furthermore, there is no material difference in security of tenure between a secure tenant and a secure licencee. As a result, disputes about whether an occupier is a tenant or licencee arise more often in the private sector.

However, an occupier’s status may still be relevant in the social housing sector. Particularly in cases where the local authority wants to evict an occupier without first obtaining a court order. The local authority may not do so with a non-secure tenant, but may sometimes do so with a non-secure licencee. Therefore, the occupier’s status could have a significant impact on procedure for evicting them.

Tenancies and licences can be created orally or in writing, but it’s unlikely a social housing landlord would grant these orally.

A tenancy agreement gives the tenant a legal interest in the land. This contrasts with a licence, which is a personal right, granting permission to occupy a property.

4 – THE HALLMARKS OF A TENANCY

In most cases, where all the hallmarks of a tenancy are present, it is likely a tenancy has been created. The words used to describe the agreement are not the deciding factor where the description is inconsistent with the facts. Therefore, an agreement described as a licence may nonetheless create a tenancy if all three hallmarks of a tenancy are present.

The hallmarks of a tenancy are firstly, that the occupier has exclusive possession of the property; secondly occupation is granted in return for the payment of rent; and thirdly, occupation is granted for a term.

Exclusive occupation means the occupier has a right to occupy the property, and to exclude all others from the property. This right includes the right to exclude the landlord or the landlord’s representative. It means they may only enter the property with the occupier’s permission.

The payment of rent reflects it is a formal agreement, by which the landlord allows the tenant to occupy on the payment of, or in consideration of, the rent. This formality is consistent with the tenant having an estate in land. It also distinguishes it from an informal arrangement, for instance where someone stays as a guest.

A tenancy must be granted for a term; the term can either be for a fixed term or periodic. With a fixed-term agreement, the parties expressly agree that the fixed term will last for a specified (i.e. fixed) time. When a fixed-term agreement expires, the tenancy continue as a statutory periodic tenancy if it has not been brought to an end by the parties. In other words, the tenancy rolls over into a statutory periodic tenancy. The statutory aspect relates to the relevant statute which governs the tenancy agreement.

Both the Housing Act 1985 and 1988 make provision for tenancies continuing as statutory periodic tenancies when the initial fixed term expires. The term of a statutory periodic tenancy relates to the period of the rent payments due under the initial fixed-term tenancy. So, where the fixed-term tenancy required rent is paid weekly, on expiry, the tenancy becomes a weekly statutory periodic tenancy, running from week to week.

A tenancy may be granted as a periodic tenancy from the start, so it will simply be a periodic tenancy not a statutory periodic tenancy. The term of a periodic tenancy also relates to the period of the rent payments. Therefore, it would be a weekly periodic tenancy where the rent is payable weekly, and a monthly periodic tenancy if rent’s payable monthly.

For example, where the rent is due every Monday in respect of a weekly tenancy, Monday is the first day of the period of the tenancy, and Sunday would be the last day of the period of the tenancy. At common law, where a notice to quit is served, it should expire on the last day of the period of the tenancy.

5 – LICENCES

The most common type of licence is a bare (i.e. non-contractual) licence for resident household members. So where a tenant lives with their family, any family members who are not tenants are licencees. In other words, they live at the property because the tenant has granted them a licence allowing them to live there.

The tenant can revoke that licence by withdrawing their permission for the family member to continue living there. In which case, as the family member has no interest in the property, they must leave. If they refuse to leave, they will be trespassing.

As regards social housing, licencees are likely to be contractual licencees. So they will occupy their property under a licence agreement made with the social landlord.

6 – SOCIAL HOUSING TENANCIES WITH SECURITY
OF TENURE

There are a variety of tenures amongst social housing tenants, for instance, secure and assured tenancies affording security of tenure. Through to introductory and starter tenancies which provide no substantive security of tenure.

Security of tenure usually only becomes an issue when one party, normally the landlord, wishes to end the agreement. At that stage, identifying the type of tenancy granted is particularly important to understand each parties’ rights. This will also determine which statute applies to the tenancy, and determine the procedure for recovering possession.

Depending on which statute applies, the details of the possession procedure for tenants with security of tenure differs. But there are some common features. Firstly, the landlord must have a reason or ground for seeking possession. The ground for possession must be one specified in the relevant legislation as being an available ground on which possession may be recovered. This is referred to as the statutory ground for possession.

If the ground for possession is or includes rent arrears, the landlord needs to comply with the Pre-Action Protocol for Possession Claims by Social Landlords (“the Protocol”). The landlord needs to comply with the Protocol before serving the notice that initiates the possession process. Serving a document refers to delivering a copy of it to another person.

The Protocol sets out the steps that should be taken before a notice is served. After following the relevant parts of the Protocol, a landlord may initiate possession by serving notice. The notice must state the statutory ground being relied on.

If the ground relied on is not rent arrears, the Protocol does not apply. In such cases, the process is normally initiated by the landlord serving notice on the tenant. The notice warns the tenant of the landlord’s intention to recover possession. Again, the notice must state the statutory ground being relied on. This provides the tenant with an opportunity to address the reason, where it’s possible to do so. For instance, if the landlord’s reason is noise nuisance, it gives the tenant a chance to stop future noise nuisance.

After the notice has expired, the landlord may issue possession proceedings.

Some statutory grounds for possession are discretionary. This means even if the ground is proved, before making a possession order, the court must be satisfied it’s reasonable to do so. Other grounds are mandatory, which means the court must make a possession order if the landlord has followed the correct procedure. However, in some case a claim on mandatory grounds can be defended if a public law defence is available.

Where a tenant has security of tenure, a landlord may only end their tenancy by obtaining and enforcing a possession order. Unless or until that happens, the tenancy continues.

7 – SOCIAL HOUSING OCCUPIERS WITHOUT SECURITY
OF TENURE

Not all occupiers of social housing are tenants, some are licencees. In the private rented sector whether an occupier is a tenant or licencee can be contentious. Where possible, some private landlords may try arguing an occupier is a licencee because they have less security. Their insecurity makes it easier for the private landlord to evict them. A private sector licencee will not have a substantive defence to possession proceedings.

A social landlord may also grant an occupier a licence instead of a tenancy. Some social housing licencees have no substantive security of tenure. But even social housing licencees without security of tenure may nonetheless have a substantive defence to possession proceedings. For instance, they could rely on a public law defence. Public law defences are discussed in more detail at sectionss 58 to 60 below.

There are a number of situations where a local authority may grant a licence rather than a tenancy. For instance, those occupying supported accommodation usually have a licence rather than a tenancy.

Another situation is where local authorities provide short term accommodation, such as where it provides temporary accommodation to homeless applicants. This can be accommodation from the local authorities own housing stock. In this situation, the local authority must notify the tenant that the accommodation is not provided under a secure tenancy. If the local authority does so, the tenancy will not be a secure tenancy unless it later notifies the occupier otherwise.

There is a similar situation where a local authority may provide accommodation to homeless applicants which is also not occupied under a secure tenancy. This happens where the local authority doesn’t own the temporary accommodation provided to the homeless applicant. Instead, the local authority rents it from a third party, and then grants the homeless applicant a licence to occupy it. So although the local authority is the immediate landlord, it does not own the property.

Where the above situations arise, a local authority may grant non-secure tenancies or non-secure licences.

A list of tenancies or licences which are granted by a local authority but excluded from secure tenancy status can be found at Schedule 1 to the Housing Act 1985.

8 – TYPES OF LOCAL AUTHORITY TENANCIES

When the 1985 Act was introduced it allowed local authorities to grant secure periodic or fixed-term tenancies. Most local authorities granted periodic secure tenancies. Subsequent legislation has introduced other different types of tenancies. The Housing Act 1996 (“1996 Act”) allowed local authorities to grant introductory tenancies. The 1996 Act also introduced demoted tenancies. Where anti-social behaviour was proved, it allowed the court to downgrade the tenant’s security. This meant the court ordered the secure tenancy would be substituted with a demoted tenancy.

Relatively few landlords apply for demoted tenancies. Therefore, they are not dealt with in this book. Readers should refer to section 82A of the Housing Act 1985 for further information about demoted tenancies.

More recently, the Localism Act 2011 allows local authorities in England to grant secure flexible tenancies to new tenants. Flexible tenancies are a type of secure fixed-term tenancy.

Where the term secure tenancy is used in this book, unless otherwise stated, it will include both secure periodic and secure flexible tenancies.

9 – SECURE TENANCIES

Local authority social housing tenancies are secure tenancies, governed by the Housing Act 1985 (“1985 Act”). The 1985 Act applies to local authority tenancies, including those tenancies created before it came into force.

The conditions of a secure tenancy must be satisfied for the 1985 Act to apply. Those conditions are that the landlord is a local authority (see section 80 of the 1985 Act), and the tenant is an individual or individuals (see section 81). The tenant must also occupy the property as their only or principal home. If it’s a joint tenancy, the condition is satisfied if at least one of the tenants occupies the property as their only or principal home.

Some tenancies and licences may not be secure even if they satisfy the above conditions. Examples are non-secure tenancies and non-secure licences.

An analysis of the conditions for secure tenancy status are set out in sections 10 to 12 below.

10 – ONLY OR PRINCIPAL HOME

The secure tenancy condition to occupy property as an only or principal home is also relevant in succession and alleged subletting cases. But the term “only or principal home” is not defined in any statute. Another way of describing principal home is main home. Whether the requirement has been met is likely to depend on the circumstances of each individual case.

In reality, most social housing tenants only have one home, making it straightforward to establish whether the requirement is met. However, it can be an issue in some cases. It’s unlikely a tenant will be treated as occupying a property as their only or principal home if they have removed all their belongings from a property; live full-time elsewhere; and have no intention of returning to a property. In between this scenario and someone who has one home, others may have more than one home for a variety of reasons. In such cases it’s necessary to consider which property is their principal home.

Where an individual stays in more than one place, one way to assess which is their only or principal home may be to look at the purpose of occupying each property. An example is someone who works away from home. If they stay in a guesthouse during the week, but return to live with family at the weekend, their principal home is the family home. They will be regarded as occupying the family home as their only or principal home. That’s likely to be the case, even if on average more nights are spent in the guesthouse.

Where an individual keeps all or most of their personal belongings, spends their leisure time and/or they eat their meals, may also be relevant when identifying their principal home.

Where there is a dispute about whether a tenant occupies a property as their only or principal home, tenants may rely on paying the utility bills or receiving official post at a particular property. For instance, if their GP or employer record the property as their home address. They may also rely on relatives, friends and neighbours to confirm they live at the property. A social landlord trying to establish whether a person occupies a property as their only or principal home may look at HMRC’s records, the DWP’s records, council tax records, the electoral roll and records held by credit reference agencies.

Any combination of these factors may be relevant in a particular situation, which is why this should be considered on a case-by-case basis.

11 – IN AND OUT OF SECURITY

There may be fluidity in whether someone occupies a property as their only or principal home. But the tenant condition is satisfied at any time when one, or at least one joint tenant, occupies the property as their only or principal home. While they are so occupying, the tenancy remains secure. However, it will not be a secure tenancy during any period they cease occupying the property as their only or principal home. During the period they cease occupying, they lose their secure tenancy status. Consequently, they also lose the protection afforded by the 1985 Act. This means they will have no substantive security of tenure, and will be a common law tenant.

For instance, someone may move out of a property, clear their belongings, have no intention of returning, and go to live elsewhere. That person would no longer occupy the departed property as their only or principal home. If their living arrangements at the alternative accommodation breakdown, they may return to live at the original property. And on their return, if they occupy it as their only or principal home, their secure tenancy status is restored.

To recover possession from a common law tenant, a social landlord needs to serve a notice to quit. As previously explained, they will no longer have protection under the 1985 Act. Therefore, if the notice to quit expires while the tenant is not occupying the property as their only or principal home, the notice to quit will end their common law tenancy. In this case, the only protection a tenant has would be section 3 of the Protection From Eviction Act 1977 (“the 1977 Act”).

By section 3 of the 1977 Act, a residential occupier may remain in occupation until the landlord obtains a possession order against them.

Because protection under the 1977 Act is only available to a residential occupier, it does not apply to someone who has permanently vacated the property. It would be different if they left the property, resulting in a loss of their secure tenancy status, so becoming a common law tenant. Where a notice to quit is served, and it expires during their absence, the notice to quit would end but their common law tenancy. But if they later returned to live at the property, by resuming occupation, they are a residential occupier under the common law tenancy. Therefore, by section 3 of the 1977 Act, their landlord requires a court order to evict them.

12 – RELATIONSHIP BREAKDOWN

In some circumstances, a tenancy can remain a secure tenancy even if the tenant no longer lives at the property. This may happen where there has been a relationship breakdown. If the tenant leaves the property, but their non-tenant spouse or non-tenant civil partner remains, the tenancy may still be secure.

This is topic is dealt with at section 30 of the Family Law Act 1996.

By section 30, the tenancy remains secure if the non-tenant resident spouse or civil partner occupies the property as their only or principal home. This is because their occupation is treated as it the property is being occupied by the tenant-spouse or tenant-civil partner who has left. Therefore, their continued occupation preserves the security of tenure.

However, their occupation only preserves security so long as they remain spouses or civil partners. Once spouses divorce or a civil partnership is dissolved, security of tenure will be lost if the tenant is not occupying the property as their only or principal home.

13 – SUBLETTING

Subletting involves a series of agreements. Firstly, where a landlord grants a tenancy of a property to person X. In this situation, the landlord may also be referred to as the head landlord. Secondly, if X grants a tenancy of the same property to Y, the tenancy between X and Y is a sub-tenancy. But the sub-tenancy must have all the hallmarks of a tenancy as set out at section 4 above. In which case, X becomes the intermediate tenant (sometimes referred to as the “mesne”[1] tenant) and Y would be the sub-tenant.

These arrangements would affect X’s security of tenure. For instance, if the head landlord is a local authority which granted X a secure tenancy. If X grants Y a sub-tenancy of the whole property, X will lose their status as a secure tenant. This is because X will no longer occupy the property as their only or principal home. As stated above, a tenant who stops occupying a property as their only or principal home temporarily loses security during the period they are not occupying it. But subletting the whole property is different. If a tenant sublets the whole property, this permanently ends the secure tenancy. Once a secure tenancy ends in this way, it cannot become secure again.

Where a tenant sublets their property and loses security of tenure, they will become a common law tenant. So to recover possession, the landlord only needs to serve a notice to quit. If the landlord needs to issue proceedings to recover possession, there is no need to prove a statutory ground for possession. This is because the statutory protection no longer applies. The tenant’s only protection is at common law. Therefore, if the landlord follows the correct procedure the court must make a possession order, unless a public law defence is raised.

The situation would be different if the landlord grants X a secure tenancy, and X takes in Y as a lodger. In that situation, X grants Y a licence rather than a tenancy. X retains their security of tenure because they would continue occupying the property as their only or principal home. But note: some tenancy agreements require the tenant obtains their landlord’s permission before taking in a lodger. In such cases, a tenant who takes in a lodger without their landlord’s permission would be in breach of their tenancy agreement.

14 – SECURE PERIODIC TENANCIES

Most secure tenancies were granted as periodic tenancies as these are most suited to the objective of providing long-term accommodation. The tenancy will remain secure so long as the conditions of a secure tenancy set out above are met. It will also remain secure unless one party takes positive steps to terminate the tenancy. Such steps would include a landlord serving notice, and obtaining and enforcing a possession order.

The periodic secure tenancy offers the greatest security of tenure of all tenancies granted by local authorities. Some other types of local authority tenancies are dealt with below.

15 – INTRODUCTORY TENANCIES

The 1996 Act created a new type of local authority tenancy called an introductory tenancy. The relevant provisions are contained in Part V of the 1996 Act, sections 124 to 133. The provisions came in to force on 12^th February 1997. It gives local authorities the option of formally electing, through the local authority’s executive, to operate an introductory tenancy regime. Where a local authority does so, subsequent periodic tenancies granted to its tenants, that would previously have been secure, will be introductory tenancies. And most fixed-term tenancies between two to ten years that would have previously been secure, will also be introductory tenancies.

There is an exception even where the local authority has adopted the introductory tenancy regime. The exception applies where, immediately before a new tenancy is granted, the tenant held a social housing tenancy. If the social housing tenancy was an assured or secure tenancy, the new tenancy will not be an introductory tenancy.

An introductory tenancy provides a trial period or a probationary period. Introductory tenancies typically last for one year. After the probationary period, the introductory tenancy becomes a secure tenancy.

An introductory tenancy normally continues if the tenant moves to alternative social housing during the probationary period. They will remain an introductory tenant if the new landlord also operates an introductory tenancy regime. Or the probationary period continues if the new landlord is a PRPSH that operates a starter tenancy regime. Providing there is no break between the new and previous tenancies, the trial period continues, it does not start again. So the trial period under the new tenancy will be reduced to reflect the duration of the previous introductory tenancy.

However, the one-year trial period can be extended by six months if two conditions are satisfied. Firstly, if the landlord gives the tenant written notice containing certain required information, including that the introductory tenancy will be extended. The notice must be served at least 8 weeks before the original expiry date of the introductory tenancy. The second condition is the tenant doesn’t request a review of the decision to extend the introductory tenancy. Or any review that is requested is dismissed.

A tenant seeking a review of the decision to extend must request it within 14 days of the notice being served. The request doesn’t have to be in writing. But it would be advisable for the request to be made in writing. The tenant can therefore confirm the request was made and the date it was made.

The review procedure is set out in the Introductory Tenancies (Review of Decisions to Extend a Trial Period) (England) Regulations 2006.

The regulations state the review will be conducted without an oral hearing unless the tenant requests one. Any request for an oral hearing must also be made within the same 14-day period for requesting a review.

The landlord must give the tenant at least 10 clear days’ notice of the review. If there will be an oral review hearing, the landlord must notify the tenant of the time and place of the hearing.

The review must be conducted by someone not involved in making the original decision to extend the introductory tenancy. The person conducting the review must also be senior to the original decision maker.

If there is an oral hearing the tenant may be accompanied or represented. They may be represented by someone who is or is not legally qualified. The tenant or their representative, may call evidence, and question anyone who gives evidence.

The hearing may proceed in the tenant’s absence if they have been given notice of the hearing, but they do not attend.

If the applicant requests the review hearing is postponed the landlord may agree or refuse the request. If it’s postponed, the tenant must be given reasonable notice of the date, time and place of the postponed hearing.

A tenant may make written representations in support of their review. Any written representations must be received by the landlord at least 2 clear days before the review.

Any written representations made must be considered when reaching the review decision.

Like a secure tenancy, a landlord can only end an introductory tenancy by obtaining a court order which is then executed. But compared to a secure tenant, the process for obtaining a possession order against an introductory tenant is more straightforward. Recovering possession from an introductory tenant is dealt with at sections 26 to 28 below.

16 – FLEXIBLE TENANCIES

Like introductory tenancies, it can be more straightforward to recover possession from a flexible tenant compared to a periodic secure tenancy. Therefore, local authorities are better able to manage housing stock.

Flexible tenancies are dealt with at sections 107A to 107E of the 1985 Act.

To be a flexible tenancy, the tenancy must be granted for a fixed term of two years or more. Also, before granting the tenancy, the local authority must serve a written notice on the person who will be the tenant. The written notice must state the tenancy will be a flexible tenancy. It must also state the other express terms of the tenancy.

If the tenancy being granted is an introductory tenancy, the written notice must also state the following:

It will become a flexible fixed-term tenancy when the introductory tenancy expires.
It must state the length of the fixed-term.
It must state the other express terms of the tenancy.

A landlord’s decision to offer a flexible tenancy can be reviewed. A person who is served with a written notice that their tenancy will be a flexible tenancy has the right to request a review. However, any review will only consider the length of the fixed term being offered. Even then, it may only consider whether the length of the fixed term offered is inconsistent with the local authority’s policy regarding flexible tenancies. That means there is no right to a review of the decision to offer a flexible tenancy rather than a secure tenancy.

The review must be requested within 21 days of receiving the offer or the written notice. However, the local authority may agree in writing to a longer period. Where a review meeting these requirements is requested, the local authority must provide a written review decision. If the review decision confirms the original decision to offer a flexible tenancy, the local authority must also give reasons for its decision.

There is an exception in the case of those who have experienced domestic abuse. Local authorities are prevented from granting flexible tenancies to those who have experienced domestic abuse in the situations set out below.

The first situation is:

Where a person has or had a qualifying tenancy, either as a sole or joint tenant.
The local authority is satisfied the tenant or a member of their household is experiencing or has experienced domestic abuse.
And a new tenancy for alternative accommodation is granted for reasons connected to the domestic abuse.

The second situation is:

Where a person has or had a qualifying tenancy, either as a sole or joint tenant.
The local authority is satisfied the tenant, or a member of their household is experiencing or has experienced domestic abuse.
And a new tenancy for the same accommodation is granted for reasons connected to the domestic abuse.

A qualifying tenancy is typically a secure tenancy or a PRPSH assured tenancy.

Section 150 of the Localism Act 2011 requires all local housing authorities to prepare and publish a tenancy strategy. Amongst other matters, the tenancy strategy must deal with the following:

The types of tenancies the authority will grant.
The circumstances in which it will grant a particular type of tenancy.
If it will grant fixed-term tenancies, the length of the terms that will be granted.
The circumstances in which a further tenancy will be granted when the fixed-term tenancy expire.

The tenancy strategy must be kept under review, and it may be amended from time to time or replaced as appropriate.

Early indications were that flexible tenancies were not particularly popular in the years following the introduction of the Localism Act. For instance, as at September 2018, 29 of 50 English local authorities did not support using flexible tenancies[2]. However, it’s anticipated in time the number of local authorities using flexible tenancies is likely to increase.

Furthermore, legislation has been passed, but is not yet in force, which phases out secure periodic tenancies (see paragraph 7 of schedule 4 to the Housing and Planning Act 2016). If that legislation comes into force, new local authority tenancies will be flexible tenancies.

17 – NON-SECURE TENANCIES AND LICENCES

There is no statutory definition of a non-secure tenancy or non-secure licence.

A non-secure tenancy arises where the landlord and tenant conditions required for a secure tenancy are met (see sections 80 and 81 of the 1985 Act). The hallmarks of a tenancy are present, but for some reason, the tenancy created is not a secure tenancy. For instance, the tenancy may be excluded from secure tenancy status under Schedule 1 to the 1985 Act. One situation where a non-secure tenancy arises is where a local authority temporarily rehouses a secure tenant while repairs are carried out at the tenant’s home.

A non-secure licence arises where the landlord and tenant conditions required for a secure tenancy are satisfied. If the agreement creates a licence, it will be a non-secure licence if it is excluded by law from protection under the 1985 Act. This may happen where a local authority provides interim accommodation to a homeless applicant.

18 – TENANCIES GRANTED BY PRIVATE REGISTERED PROVIDERS OF SOCIAL HOUSING

Like local authorities, historically PRPSHs granted tenancies that were intended to be lifetime tenancies. In fact, prior to 15^th January 1989 PRPSHs granted secure tenancies.

However, due to the scarcity of social housing, tenancies granted by PRPSHs now tend to provide less security. As a result, the use of fixed-term tenancies by PRPSHs has increased in recent years. This coincided with, and was undoubtedly influenced by, the regulatory framework for social landlords published when the Localism Act 2011 was introduced. At that time, it was published by the Homes and Communities Agency (“HCA”). The HCA has since been replaced by the Regulator of Social Housing (“RSH”).

The regulatory framework requires general needs [3] secure or assured tenants are granted periodic tenancies, or tenancies for a minimum fixed term of five years. Or exceptionally, a fixed term tenancy for a minimum of two years, in addition to any probationary period.

The regulatory framework also sets out the Tenancy Standard PRPSHs are required to meet. The regulatory framework is periodically updated. It’s guidance on tenure is similar to the provisions at section 150 of Localism Act 2011 regarding local authority tenancy strategies (see section 16 above). It means that where PRPSHs grant fixed-term tenancies, this should be dealt with in their tenancy strategies.

In relation to security of tenure, the Tenancy Standard states a PRPSH’s tenancy strategy needs to deal with the following:

The types of tenancies the PRPSH will grant.
The circumstances in which it will grant a particular type of tenancy.
If it will grant fixed-term tenancies, the length of the terms that will be granted.
The circumstances in which a further tenancy will be granted when the fixed-term tenancy expire.
The mechanism for an individual to appeal against or complain about a fixed-term tenancy. The mechanism should allow an appeal or complaint to be made on the following grounds:
- The fact that a fixed-term tenancy is being offered.
- The length of the fixed-term.
- The decision not to grant a further tenancy when the fixed-term expires.

Section 19 considers assured tenancies granted by PRPSHs, and section 20 considers assured shorthold tenancies.

19 – ASSURED TENANCIES GRANTED BY PRIVATE REGISTERED PROVIDERS OF SOCIAL HOUSING

PRPSH tenancies created before 15^th January 1989 are governed by the Housing Act 1985. Therefore, sections 9 to 13 above apply to these tenancies.

Most PRPSH tenancies created after 15^th January 1989 are governed by the Housing Act 1988.

The 1988 Act created assured tenancies (see section 1). There are two types of assured tenancies: (fully) assured tenancies providing security of tenure; and assured shorthold tenancies which provide no substantive security of tenure.

When a tenancy is created under the 1988 Act, the default position is that it will be an assured shorthold tenancy. For this reason a PRPSH that wants to grant an assured tenancy must serve a notice under section 19A of the 1988 Act before the tenancy begins, stating it will be an assured tenancy.

This book only deals with assured and assured shorthold tenancies granted by social landlords. But because the 1988 Act also governs most private sector tenancies some of its provisions tend to suit that sector. For instance, from the outset the 1988 Act also included mandatory grounds for possession in relation to assured tenancies. These are grounds 1 to 8 of schedule 2 to the Housing Act 1988. It means PRPSHs are providing social housing within a legislative framework that also applies in the private rented sector.

Over the years, the number of mandatory grounds available to social landlords have increased. This is because the ASBCP Act 2014 introduced into the 1988 Act a new mandatory ground for possession. The new ground was inserted at paragraph 7A of Schedule 2 to the 1988 Act. It is based on criminal convictions or proven anti-social behaviour.

The main difference between the requirements necessary to create an assured tenancy and a secure tenancy are the identity of the landlord. With a secure tenancy, the landlord condition must be fulfilled. There is no corresponding landlord condition with assured tenancies, although some bodies, such as the Crown, cannot create an assured tenancy.

A list of situations in which an assured tenancy cannot be created can be found at Schedule 1 to the 1988 Act.

Apart from the identity of the landlord, the requirements to create an assured tenancy are broadly similar to a secure tenancy.

The requirements can be summarised as follows:

The tenant or tenants must be individuals.
The tenant must occupy the property as their only or principal home. Or, if it’s a joint tenancy, at least one must occupy the property as their only or principal home (see section 10 above).
All three hallmarks of a tenancy must be present (see section 4 above).
An assured tenancy may come in and out of security (see section 11 above).
Subletting the whole of the property will permanently end the assured tenancy (see section 13 above).

20 – ASSURED SHORTHOLD TENANCIES GRANTED BY PRIVATE REGISTERED PROVIDERS OF SOCIAL HOUSING

A number of PRPSHs have implemented the guidance in the RSH’s Tenancy Standards (see section 18 above) by using fixed-term assured shorthold tenancies.

This represents a departure from the previous widespread use of assured tenancies. These assured shorthold tenancies are typically granted for 5 years, and therefore are in accordance with the RSH’s Tenancy Standards. This is because the RSH recommends that where fixed term tenancies are granted, they are for a minimum 5-year term. These provide less security of tenure than traditional assured periodic tenancies. It means these PRPSH tenancies more closely resemble private sector tenancies. For instance a landlord can evict an assured shorthold tenant without proving a statutory ground. Obtaining possession is largely procedural: ensuring the correct notice is properly served in accordance with section 21 of the 1988 Act.

However, some PRPSHs still rely on section 8 and schedule 2 of the 1988 Act to recover possession from assured shorthold tenants on discretionary grounds. And some PRPSHs that bring mandatory possession claims (i.e. under section 21, or grounds 1 to 8) operate a review procedure. These tend to be similar to the review procedure local authorities adopt when they intend to recover possession from introductory tenants. Where available, reviews give assured shorthold tenants the opportunity to challenge the decision to seek possession on mandatory grounds. It also means when properly conducted, carrying out a review, may insulate PRPSHs against public law challenges.

Except that a section 19A notice isn’t needed, all other requirements to create an assured shorthold tenancy are the same as to create an assured tenancy. The requirements are set out at section 19 above.

The main difference between an assured and an assured shorthold tenancy is the security of tenure. This means, while creating each type of tenancy is broadly similar, recovering possession from an assured shorthold tenant is more straightforward if the correct procedure is followed.

The Renters’ Reform Bill is expected to be published shortly. An important feature of the proposed legislative reform is the repeal of section 21. If this becomes law, it’s anticipated a new tenancy regime will replace assured and assured shorthold tenancies in their current form.