Changing to a short assured tenancy
This section looks at how other tenancy types may have been changed to short assured tenancies.
This section should only be used where the change occurred prior to 1st December 2017.
Circumstances may have arisen where an existing tenant signed a new agreement with their landlord and the landlord has claimed that this new agreement is a short assured tenancy. In such situations advisers should check if there was a pre-existing tenancy agreement between the same parties, in order to clarify what kind of tenancy actually exists.
Assured tenancy
If a landlord inadvertently set up an assured tenancy instead of a short assured (for example by failing to serve an AT5 notice) they cannot then remedy this error by subsequently serving an AT5 notice on the tenant.
The only way an assured tenancy could become a short assured tenancy was if the tenant and landlord both agreed to this change. If a landlord attempted to force an assured tenant to sign a short assured tenancy agreement against the tenant's will, the landlord may be guilty of harassment. [1] If the tenant has previously been intimidated into changing their tenancy from assured to short assured, they could argue that the contract is invalid as it was signed under duress.
If a landlord wished to alter a tenant's status from assured to short assured there was nothing to prevent them from 'buying out' the assured tenancy. There were marked difference in the values of an assured and a short assured tenancy. This was because a property was much easier to sell with 'vacant possession' and the short assured tenancy regime guarantees the landlord the ability to recover possession on a fixed date. The tenant should seek expert advice if this happened.
Protected (regulated) tenancy
A protected (regulated) tenant cannot become a short assured tenant or an assured tenant. [2] The notes to the AT5 notice make this explicit: 'If you already have a regulated tenancy, other than a short tenancy, should you give it up and take a new tenancy in the same house or another house owned by the same landlord, that tenancy cannot be an assured or a short assured tenancy. Your tenancy will continue to be a regulated tenancy'. [3]
This is not a matter of the tenant choosing to waive their rights. 'Even if the tenant agrees to take a short assured tenancy, s/he may still be able to defend a subsequent action for recovery on the basis that the tenancy was not in law capable of being a short assured tenancy'. [4]
Secure tenancy
A secure tenant cannot become a short assured tenant or an assured tenant. [5] A housing association, therefore, could not give a short assured tenancy to someone who is already a secure tenant or joint tenant of one of the association's properties. This applies whether it is a tenancy of the same house or a different house owned by the same housing association. [6] This rule also applies where the tenant is given suitable alternative accommodation as part of an order for possession over their previous tenancy. [7]
Last updated: 30 January 2018