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ASTs and Security of Tenure after 1 October

It has come to our attention that some landlord and tenant advisors are suggesting to agents and landlords that tenancies which convert to ASTs on 1 October 2010 will not be able to be terminated under s21 of the Housing Act 1988 until 6 months after that date, ie not before 1 April 2011.

This is simply not correct and is based on a misunderstanding of the wording of section 21.

S21(5) states that a possession order cannot be made until “six months after the beginning of the tenancy”. The error is assuming that tenancies which convert to ASTs on 1 October start from that date. Tenancies which have converted on 1 October are not new tenancies starting from that date. They are new tenancies from their original date of inception which have simply fallen under the statutory control of the Housing Act 1988 from 1 October. Therefore the 6 months for the purpose of s21(5) starts from the original start date of the tenancy and not from 1 October.

4 Comments

  • mark walton 16th May 2010 at 7:02 am

    thanks for the confirmation. Peace of mind.

  • liz feast 17th May 2010 at 10:13 am

    Useful information, thank you

  • Chris 19th May 2010 at 11:52 am

    Whilst clarifying the matter, would you agree that if such a tenancy were to be renewed after 1st oct 2010 then any deposit previously paid must be protected – and thus no section 21 notice can be valid until requirements of sec 213 have been complied with?

    • PainSmith 19th May 2010 at 1:47 pm

      Actually we would probably not agree. The legal position on this has never been clear but if a tenancy is being renewed then the deposit has not been received and so the trigger for protection does not occur. The suggestion advanced in the County Courts that the deposit is repaid and received again at the time of the renewal is an artificial device which does not accord well with the reasoning of the Court of Appeal in UK Housing Alliance v Francis. There the CA was very clear that the thrust of the legislation was that the money had to be paid over to be required for protection.
      That said this has not been tested before a Court of record and the safest move would be to register a deposit on renewal.

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