What type of tenancy do I have?

Contents

1. Assured and shorthold tenancy agreements (England & Wales) 1.1. Which tenancy agreement do you have? 1.2. What is the difference between an assured shorthold and assured tenancy agreement? 2. Tenancies excluded from being assured and assured shorthold tenancy agreements. 2.1. Tenancies which can be an assured tenancy but not an assured shorthold tenancy 3. Tenancy agreements in Northern Ireland 4. Assured and short assured tenancy agreements (Scotland) 4.1. Which tenancy agreement do you have? 4.2. What is the difference between a short assured tenancy agreement and an assured tenancy agreement?

A tenancy agreement made between 15 January 1989 and 27 February 1997 is likely to be an assured tenancy. However, if a written notice was served on the tenants before the letting commenced stating that the tenancy agreement would be an assured shorthold tenancy agreement, and as long as the fixed period of the tenancy was for not less than 6 months, then you have an assured shorthold tenancy agreement with the tenants.

A tenancy agreement made on or after 28 February 1997 will automatically be an assured shorthold agreement unless the tenancy agreement specifically states that it is not an assured shorthold tenancy agreement, or you have served a notice on the tenant stating this, in which case, you will have an assured tenancy agreement.

Most tenancy agreements which began before 15 January 1989 are known as 'regulated tenancies' unless the landlord lives on the property as well. They are regulated by the Rent Act which has its own separate provisions regarding rights and obligations of tenants and landlords. Where the landlord also lives on the property, the tenancy agreement will be an assured tenancy agreement (see below).

The main difference is that a landlord who has let their property under an assured shorthold tenancy agreement has an automatic right to regain possession of it at any time after any fixed term of the tenancy agreement has expired. Assured shorthold tenancy agreements entered into after 28 February 1997 which don't have fixed terms are known as 'periodic tenancies'. Landlords can give their tenants notice that they are terminating the tenancy at any time during a periodic tenancy,; whereas landlords who have let their property using an assured tenancy agreement must wait for the fixed period to elapse before giving notice In both cases, 2 months' notice is required.

Even if the tenancy agreement specifically states that is it an assured tenancy or shorthold tenancy, it will be excluded from being so if one or more of the following apply:

• It is dated prior to 15 January 1989
• It is for a rent of more than £100,000 a year
• It is rent free or at a low rent (£250 a year outside Greater London) or (£1000 a year within Greater London)
• The property is being let to a business or is agricultural land or agricultural holdings within the meaning of the Agricultural Holdings Act 1986
• It is a holiday lettings where the purpose of the tenancy is to give the tenant a right to occupy for a holiday only

In the circumstances listed below, the tenancy can only be an assured tenancy agreement:

• A tenancy replacing an earlier assured tenancy agreement which has come to an end
• An assured tenancy created where the tenant has 'inherited' possession of the property on the death of a previous 'Rent Act regulated tenant' (a tenant who has an agreement predating 15 January 1989)
• A tenancy that has been transferred from a public sector landlord to a private landlord
• A tenancy arising automatically when a long leasehold tenancy expires
• The landlord also lives in, and shares the property with, the tenant, or where the landlord lives in a building which has been converted into flats (as opposed to a purpose built block of flats) and lets another flat in the same building to the tenants

If you have any doubts which type of tenancy you have then you should seek legal advice.

There is only one type of standard residential tenancy agreement which can cater for furnished or unfurnished properties. However, in certain circumstances, the rent can become controlled. See our How to set up a tenancy section, under the Certificate of fitness (Northern Ireland only) heading, for more information.

A tenancy agreement made before 2 January 1989 is likely to be a regulated tenancy, meaning the tenant will have security of tenure and a more favourable situation in relation to rent assessment. A tenancy made after 2 January 1989 is likely to be either an assured tenancy or a short assured tenancy. To be a short assured tenancy, a landlord needs to have served on the tenants - prior to the signing and commencement of the lease by the tenants - a statutory form known as an AT5, which specifies that the tenancy being created is a short assured tenancy. If this is not done prior to the signing and commencement of the lease by the tenants then the tenancy created will be an assured tenancy.

The main difference is that a landlord who has let their property under a short assured tenancy has an automatic right to regain possession of it at any time after the fixed term of the tenancy agreement has expired, provided sufficient notice is given to the tenant. Landlords who have let their property using an assured tenancy agreement do not have this right as the tenant has security of tenure.

Landlords who have an assured tenancy agreement must instead wait until particular limited circumstances have occurred giving them grounds to seek a possession order against the tenants (such as the tenants being in rent arrears).

It would be unusual for a landlord to wish to create an assured tenancy rather than a short assured tenancy (although many landlords inadvertently create an assured tenancy by failing to properly follow the rules in relation to the service of the AT5).

If you have any doubts about which type of tenancy you have then you should seek legal advice.