[2025] UKUT 258 (LC)

The relevant statutory provisions are contained in the Housing Act 1988, of which section 5(2) has the effect that when a fixed-term assured tenancy (such as Mr Constantine’s which was granted for a term of 12 months) comes to an end because it has reached the end of its term, then the tenant is entitled to remain in possession on a statutory periodic tenancy. Section 5(3) provides that that is a tenancy:

“(a)

taking effect in possession immediately on the coming to an end of the fixed term tenancy;

(b)

deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

(c)

under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy;

(d)

under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and

(e)

under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy.”

Where a statutory tenancy has arisen, section 13 provides that the landlord can serve a statutory notice proposing a new rent. If the tenant does not accept that new rent, the tenant may apply to the FTT which will determine a market rent for the tenancy, and that will be the rent that takes effect (whether lower or higher than the rent proposed by the landlord.

In London District Properties Management Limited v Goolamy [2009] EWHC 1367 (Admin) Burnett J held that any provisions about rent in the original assured tenancy, which are expressed to govern the rent after the statutory periodic tenancy takes effect, are of no effect; once the statutory periodic tenancy takes effect the landlord can serve a section 13 notice (subject to the timing provisions in that section) and the FTT has jurisdiction to determine a market rent under section 14.

However, the tenant says that that is not what has happened here and relies on section 5(4) of the 1988 Act which says:

“(4)

The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy.”

In order to explain that we have to look at the terms of the tenancy.