Here is a question to the blog clinic Fast Track from Alex (not his real name) whose mother is a landlord of a protected tenancy.
My mum has inherited a flat from my late father. The Tenant has been living there under the 1977 Rent Act since 1984. My late father renewed the Tenancy every year. But in 2017 the tenant willingly signed a new AST two years running. Under no pressure, she accepted the AST, even though she was told in writing she may want to get her own legal advice
Is she now an AST tenant? And can my mum now give her the required notice as my mum at 87 wishes to sell the property
Answer
I am afraid the tenant is not an assured shorthold tenant. Assured shorthold tenancies (which are created under the Housing Act 1988) only apply in certain circumstances. One of the exceptions is if the tenancy first started before 15 January 1989.
So even though the tenant may have signed an assured shorthold tenancy agreement form, this wording stating that the tenancy is an AST will have no effect and the tenancy will remain a protected tenancy under the Rent Act 1977. A tenancy which started before 15 January 1989 is legally incapable of being an AST.
However, this does not mean that the new tenancy agreement signed in 2017 is of no value. Most of the clauses, so long as they are not inconsistent with a protected tenancy, will apply.
So far as recovery of possession is concerned, obtaining possession through the Courts is, as you will appreciate, very difficult where the tenant has a protected tenancy. Generally, this will only be possible:
- If the tenant is in serious arrears of rent – and even then the Court will normally allow them time to pay, or
- If the landlord is able to provide ‘suitable alternative accommodation’. Which is presumably not the case with your Mother.
However, it may still be possible for her to sell the property as an investment property with a sitting tenant. She won’t get as much as if the property was sold with vacant possession, but if at 87 she no longer wants the responsibility of managing a rented property this could be a way out.
There are companies that specialise in buying properties with sitting tenants who would be happy to take it off her hands. You may be able to locate them via searching the internet or maybe by asking questions on Property Tribes or Property 118.
It may be an idea first to get the property valued (as subject to a protected tenancy) by a local surveyor or estate agency firm so you can be sure that you are being offered a reasonable price. The valuer may also be able to help you find a buyer.
I hope this advice is helpful.
J N says
January 7, 2020 at 11:27 AMWhat does it mean to renew a tenancy? When I read that the tenancy was renewed, I thought it meant it was replaced with a new tenancy agreement by mutual agreement between landlord and tenant, so I thought the assured tenancy would have been superseded by the new tenancy (and therefore would have started in 2017 or whenever). Was the renewal instead some kind of reaffirmation of the existing protected tenancy?
Tessa Shepperson says
January 7, 2020 at 11:46 AMThe Rent Act 1977 provides that once the fixed term of a tenancy has ended, the tenancy will continue as a protected tenancy, usually on a month by month basis.
This will continue until something happens to stop it. For example, the protected tenancy can end by a court order or by the tenant moving out and not living there anymore.
Now if a new tenancy form is signed, this will create a new fixed term. However, the type of tenancy will remain a protected tenancy. It cannot be an assured or an assured shorthold tenancy because in Schedule 1 Part 1 s1 of the Housing Act 1988 (which is the statute which governs assured and assured shorthold tenancies) it says that one of the tenancies which cannot be ATs or ASTs are:
A tenancy which is entered into before, or pursuant to a contract made before, the commencement of this Act.
This will overrule any statement to the contrary on the face of the document signed.
So the effect of the new signed tenancy agreement is that it will be a new protected tenancy.
With tenancies, the parties have limited power to change the nature of the occupation type – generally, this will be determined by things other than the wording on the piece of paper that they sign. The authority for this is the House of Lords decision in Street v. Mountford in 1985.
Jon says
January 8, 2020 at 8:02 PMHi Tessa, do you have any other legislation or case law examples that would support your response in this post.
Many agents appear to go to great lengths with protected tenants to get that signature on an AST. I always assumed that, a new tenancy agreement signed would be authoritative, and while I understand the point about street v mountford I always thought this was solely in relation to the tenancy/licence distinction, rather than a distinction between statutory tenancy regimes across time, if you see what I mean.
Any further info would be greatly appreciated.