Residential tenancies

It is extremely important to understand exactly which type of tenancy has been granted. When bringing a possession action, the type of tenancy will determine which notices need to be served, and which (if any) statutory regime applies to protect the tenant's occupation.

Assured and assured shorthold

Most private sector tenancies are assured shorthold tenancies (AST) but there are a number of important exceptions:

• tenancies with a resident landlord

• holiday lettings

• student lettings

• lettings to companies, and

• lettings at high rent (over £25,000 rent a year) (£100,000 per year from 1 October 2010)

  Assured Tenancies (Amendment) (England) Order 2010, SI 2010/908

Post 28 February 1997, the AST is the default or automatic tenancy, and it is no longer necessary to serve a separate 'section 20' notice on the tenant. If the landlord lets a property on an assured shorthold he is entitled to, and guaranteed, the right to regain possession at the end of the term as long as he follows the statutory notice requirements:

• the landlord must give two months' notice that possession is required

• possession will only be awarded after six months

• where notice is given in respect of an AST that has become a statutory periodic tenancy following expiry of the initial contract, or where the tenancy was granted as a periodic tenancy, the landlord's notice must expire at the end of a period of the tenancy

The AST tenant may apply to a rent assessment committee to have the rent reduced if he considers the rent to be significantly higher than the rent for comparable tenancies in the area.

With the ordinary assured form of tenancy, the tenant enjoys greater security of tenure and this type of tenancy is still used by many public sector landlords such as housing associations. The tenant has the right to remain in the property unless the landlord can prove particular grounds for possession. There are 17 such grounds provided by Housing Act 1988, s 20. The most commonly used grounds are:

• the landlord wishes to move back into his own home

• the tenant is in arrears with his rent

• the tenant is in breach of one or more of his obligations under the tenancy

• the tenant (or his visitor) is guilty of causing a nuisance

Unlike an AST tenant an ordinary assured tenant has no right to refer the rent to a rent assessment committee during the initial agreed tenancy. Tenancies set up after 15 January 1989 and before 28 February 1997 were automatically deemed to be ordinary assured unless the landlord served a 'section 20' notice on the tenant.

Rent Act protected tenancies

Rent Act 1977 introduced the 'protected tenancy' under which the tenant had the right to a fair rent and security of tenure. Protected tenancies have been replaced by assured tenancies under Housing Act 1988 and, consequently, Rent Act 1977 will generally only apply to tenancies created before 15 January 1989.

Existing protected tenancies continue to have protection. When the contractual tenancy comes to an end, the tenant gains security of tenure as a statutory tenant, on the terms of the contractual tenancy and with an absolute right to continue living in the premises indefinitely. Rent Act protected tenancies can also pass to family members by succession.

Mixed use tenancies

With more people working or running a business from home, there are an increasing number of ‘mixed use' tenancies (ie where there is a degree of both residential and business use). This situation can be complex, and the type of tenancy that exists here will depend on a number of factors including the degree of business/residential use and the intention of the parties when the tenancy was created.

Common law tenancies

A landlord who lets part of his home to a tenant is a ‘resident landlord'. This type of tenancy is outside the protection of Housing Act 1988 as the intention is to give a resident landlord stronger rights than the average landlord letting under an assured tenancy. The tenancy operates under common law rules and cannot be assured or AST. This rule normally applies to converted houses (including those divided up into flats). The landlord does not need to share any accommodation with the occupier to qualify for resident landlord status. It is enough that both landlord and tenant live in the same building.

If, however, the property is a purpose-built block of flats and the landlord simply lives in one of the flats in the block, this does not qualify for ‘resident landlord' status. The tenant will occupy as an assured or assured shorthold tenant.

Housing Act 1988, Sch 1 states that 'a tenancy the purpose of which is to confer the tenant the right to occupy the dwelling-house for a holiday' cannot be an assured tenancy.

Public sector tenancies

Public sector housing deals predominantly with lettings by local authorities and housing associations. Lettings in the public sector are known as 'secure tenancies' because they generally provide the tenant with a high degree of security of tenure compared with private sector tenancies. Until comparatively recently (1980) such public tenants were outside all forms of statutory regulation on the basis that public sector landlords had no profit motive and, therefore, their tenants did not need legal protection. 'Secure' tenancies were introduced by Housing Act 1980 and its provisions have since been consolidated into the 1985 Act. Many local authorities have transferred their housing stock to 'registered social landlords' such as housing associations.