[2024] UKUT 53 (LC)

The Housing Act 1988 introduced two new forms of tenancy; the assured tenancy, defined in section 1 as a tenancy of a dwelling-house let as a separate tenancy, and the assured shorthold. The principal difference between them is that the assured tenancy has security of tenure while the tenant under an assured shorthold does not. The 1988 Act was amended by the Housing Act 1996, and section 19A of the 1988 Act now provides that every assured tenancy entered into since 28 February 1997 is an assured shorthold tenancy unless it is within the list of exceptions set out in Schedule 2A to the 1998 Act.

Paragraph 3 of Schedule 2A sets out one of those exceptions as follows:

“An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy.”

So a tenancy of a house let as a dwelling where the tenancy agreement states that it is an assured tenancy is an assured tenancy, not an assured shorthold tenancy.

If an assured tenancy is a periodic tenancy it cannot be brought to an end by the landlord by notice to quit; the landlord can recover possession only by obtaining an order of the court on proof of one of the grounds set out in Schedule 2 to the 1988 Act. A fixed term assured tenancy will expire at the end of its term, but the tenant is then able to remain in possession under a statutory tenancy arising under section 5 of the Housing Act 1988 and, again, the landlord can recover possession only by court order on proving a statutory ground.

This appeal is not about the recovery of possession, but the provision for a statutory tenancy to arise is relevant to the regime for the determination of rent in sections 13 and 14 of the 1988 Act.