This can be a query to the weblog clinic fast track from Martha (not her actual title), who’s a landlord in England.
I let a home in December 1981 on a Protected Shorthold Tenancy. The tenants are nonetheless there & have dedicated no breach, however I want to take again possession.
In February 2016, at my request, they signed a brand new Assured Shorthold Tenancy. They’ve been informed that they now have a protected tenancy and the best to stay. Am I capable of repossess, and in that case, how do I’m going about it, please?
Reply
Protected shorthold tenancies have been the precursor to the Assured Shorthold Tenancy (AST) that we’re all aware of.
They have been introduced in by the Thatcher authorities within the Housing Act 1980 and have been succeeded by ASTs within the Housing Act 1988. So, no new protected tenancies might be created after 15 January 1989.
There have been a variety of circumstances for the creation of a Protected Shorthold Tenancy:
- The time period will need to have been not lower than one 12 months and less than 5 years
- There was no break clause permitting the owner to finish the tenancy earlier than the top of the primary fastened time period
- The owner will need to have given the tenant a ‘Discover of Protected Shorthold Tenancy’ within the prescribed type, earlier than the tenancy began
- Some tenancies needed to have a registered honest hire. These inside Higher London and granted between 28 November 1980 and three Could 1987 and out of doors Higher London granted between 28 November 1980 and three Could 1987. It seems as if this might have utilized to your tenancy.
You will have to have complied with all of those.
Modifications on issuing a brand new tenancy
I’ve (hopefully) excellent news for you. As your tenants have signed a brand new tenancy settlement, 34(3) of the Housing Act 1988 offers that their tenancy can have transformed to an AST. Assuming that’s that you just didn’t give a discover saying this might not occur (which I assume you didn’t do).
So, offered you had accurately created the Protected Shorthold tenancy in 1981, it ought to now be an AST. Permitting you to evict utilizing the ‘no fault’ part 21 process.
However did you may have a protected shorthold?
Your tenant’s adviser has most likely suggested them that you just didn’t correctly create the Protected Tenancy in 1981. Which might imply that the tenancy has at all times been a Protected Tenancy underneath the Lease Act 1977 (and in that case, that is one thing which can’t be modified later).
It seems as if these tenants will defend if you happen to subject proceedings underneath part 21. So that you must be ready to show, to the satisfaction of the Choose on the steadiness of possibilities, that you just complied with all these circumstances again in 1981. Which means {that a} protected shorthold tenancy WAS created.
So for this, you have to to have;
- A duplicate of the unique tenancy settlement, signed by the tenants and
- A duplicate of the Discover of Protected Tenancy served again in 1981 and proof that it was served on the tenants earlier than the tenancy began and
- Proof that the tenancy had a good hire registered at that related time
Be aware that underneath s55 of the Housing Act 1980, the Choose does have the ability to waive the requirement for service of the discover, if he considers it ‘simply and equitable’ to take action.
Nonetheless, this might imply a contested case. This is able to take a very long time and might be costly. If they’re financially eligible, your tenants could also be entitled to Authorized Support. Should you misplaced the case, you’d be ordered to pay your tenants’ authorized prices – which might be costly, significantly in the event that they get authorized support.
Conclusion
I think that the tenants have been suggested that you just didn’t arrange the protected shorthold tenancy correctly in 1981 and that they, due to this fact, have (and have at all times had) a Lease Act protected tenancy.
It’s essential verify your paperwork and see whether or not you’d have the ability to counter this.
I might strongly advise that if you happen to determine to proceed, you employ solicitors and get them to advise completely in your case first.
It’s important that you just use solicitors who’re aware of this work. Such solicitors are fairly exhausting to seek out as Protected Shortholds resulted in 1989 – earlier than many solicitors as we speak have been even born!
Nonetheless, any of the solicitors on our Landlord Law Telephone Advice panel ought to have the ability to assist.
