An Assured Shorthold Tenancy (“AST”) is an agreement providing the tenant(s) with a limited security of tenure. There is a defined term of tenancy following which the landlord may terminate the tenancy without reason by virtue of a section 21 notice, unless the tenancy consists of a break-clause which would otherwise allow the landlord to terminate the tenancy within the fixed term but not before the initial 6 months of the tenancy.

Many landlords are of the belief tenants are required to vacate the let property upon the fixed term of the tenancy expiring, however there is no requirement for the tenant(s) to vacate the let property at the end of the fixed term of the tenancy (see section 5 of the Housing Act 1988 (as amended)). When an AST comes to the end of the fixed term it then becomes a statutory periodic tenancy, where the terms of the tenancy roll on month to month (if the rent is payable monthly) thus the legal obligations of both parties remain the same.

It is important to understand that landlords do not always have the option of what type of tenancy they grant to their prospective tenant, it is the physical arrangement between the parties that determines what the tenancy type is (in most cases) which prevents landlords from providing a less valuable tenancy to their tenant and having almost no legal obligations relating to the tenancy. For example, providing a lodger agreement to a person who you do not share the same living accommodations as would not be a lodger but a tenant and the tenancy would be by default an AST irrespective of what the agreement may state.

An AST is the most common residential agreement used.

Did you know: Where the tenant is a limited company, the tenancy is not capable of being an AST regardless of what the arrangement is, it is by default a common law tenancy.

The tenancy deposit protection scheme is a government authorised scheme imposed under the Housing Act 2004 (“HA 2004”)and came into force on 6 April 2007 requiring landlords to “protect” their tenants deposit by paying that money into an authorised scheme provider or insuring that tenancy deposit with an authorised scheme provider.

The tenancy deposit must be protected within 30 days of receiving the deposit and the prescribed information relating to the tenancy deposit also served upon the tenancy within 30 days, there is no requirement for the prescribed information to be signed by the landlord(s) or tenant(s).

Failure to comply with this legislation deems any section 21 notice served to be invalid unless the deposit is returned to the tenant or protected late (before the serving of the section 21 notice). The problem with the current legislation is that there are conflicting sections within the Housing Act 2004 after amendments were made under the Deregulation Act 2015 (“DA 2015”) and judges have been using their discretion relating to these sections as to whether they will grant possession or dismiss the claim where the tenancy deposit has been protected late. We are however in the process of attempting to have the amendment causing the above issue imposed under the DA 2015 to be revoked so there is no conflict and landlords can have an extent of security regarding their right to possession of their property whether or not they have complied with the HA 2004 late or not.

Another consequence for not complying the tenancy deposit legislation is the tenant(s) can claim from 1-3 times the value of their tenancy deposit and the Court can also order for the deposit itself to be returned to the tenant or to be protected with a government authorised scheme.

A section 21 notice is a notice under section 21 of the Housing Act 1988 (as amended) which provides landlords the right to terminate their assured shorthold tenancy agreement without any reason by providing no less than a 2 months notice under the above mentioned section.

A section 21 notice however must consist of the prescribed content for it to be a valid notice and if your tenancy commenced on or after 1 October 2015 and was not a replacement tenancy, you must use the prescribed form of section 21 notice which is form 6A.

Since 1 October 2015, there are more obligations to meet than ever before which if not met can invalidate any section 21 notice being served such as not serving a “How to Rent Booklet” as imposed under the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 for example. It is therefore more important to wisely choose the agent you want to use who can undertake all of your obligations correctly.

Where a section 21 notice is served and the tenants do not vacate the let property within the notice period given, the tenants’ rights do not cease, a possession claim then must be issued to obtain a Court order and that Court order also must be enforced by an authorised bailiff before the tenancy legally comes to end.

A section 8 notice is a notice with 17 different grounds for possession under schedule 2 of the Housing Act 1988 (as amended) and is commonly served for breaches of tenancy.

Some grounds for possession are discretionary and other mandatory meaning Court are not obliged to grant possession of property where the claimant relies on discretionary grounds only, but must award the claimant possession where they rely on a mandatory ground (subject to the Court being satisfied the claimant is not in breach of their obligations).

Where a section 8 notice is served due to outstanding rent arrears, the claimant has the advantage of claiming for possession of their property, rent arrears, legal fees  and tenancy deposit all in the one claim if claimed for correctly in compliance with the Civil Procedure Rules.

Many landlords, agents and even lawyers who do not specialise in housing law commonly believe the this route of eviction to be contentious and open to defence, however relying on a section 21 notice is now just as open to defence as a claim for possession under section 8 as a result of the legislation that came into force on 1 October 2015.