Here is a question to the blog clinic from Jane, who is a landlord:
I think I gave my tenant the wrong tenancy agreement when it was signed back in 2010. The Tenancy agreement specifically states that it is ‘ Non – assured shorthold tenancy Agreement for a House or flat in England or Wales). I have also recently issued a Section 21(4) a notice to vacate, with a vacate date of 31st July 2012.
I have recently discovered that a non assured shorthold agreement is for rents above gbp 100k a year which is not my case. Will I have a problem if I need to issue an eviction order and this goes to court?
Have I caused myself a problem?
Generally it is best to use the right tenancy agreement for the type of tenancy concerned. Using the wrong agreement will not mean that you have no tenancy at all, but it may have undesirable effects.
Using a tenancy agreement designed for a common law tenancy will not normally prevent you from using section 21 but I am concerned that this agreement says it is a ‘Non assured shorthold tenancy agreement’. This could be taken to indicate that it is an assured rather than assured shorthold tenancy, which WOULD prevent you from using section 21.
The default tenancy type in England and Wales is an AST but this can be changed to an AT by a notice to this effect in the tenancy agreement.
It may be that no-one will pick up on this if you bring a claim for possession using section 21, but it could cause problems and the Judge may not be willing to grant your order. I would hope this would not happen but it is possible.
Note that anyone not sure which tenancy agreement to use, can check this using our free >> Which Tenancy Agreement Guide.