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
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.