On the PainSmith helpline we are often asked about the “minimum” term of an assured shorthold tenancy. However, the fixed term is really a matter for you because there is no minimum term.
When the Housing Act 1988 first came into force, it implemented a minimum term of six months for ASTs. However, the Housing Act 1996 abolished this rule for all new tenancies commencing on or after 27 February 1997 by inserting a new section 19A into the Housing Act 1988. Section 19A even meant that landlords did not need to provide tenants with an initial fixed term tenancy but could in fact grant a periodic tenancy from the outset.
We think the confusion surrounding the issue of a minimum term centres around the courts powers to grant a possession order on the expiry of a Section 21 notice. Once a section 21 has been served on a tenant then assuming it is valid, a court can only grant a possession order if the tenant has been in occupation for 6 months at the time of the court hearing. If 6 months have not expired then the court simply has no power to grant a possession order even if there is a break clause permitting termination at, for example, 3 months or if the tenancy period is itself for only 3 months. It is important to stress that the courts power is only restricted in this way in respect of Section 21 notices and not Section 8 notices. So, if for example, rent is unpaid you should serve a Section 8 notice in the usual way and issue proceedings on its expiry no matter what stage the tenancy is at.
Just because the court does not have the power to grant a possession order until the tenant has been in occupation for at least 6 months, that does not prevent a landlord from serving the notice at month 4 of the occupation for example. A Section 21 notice is valid for up to 6 months from the date of service so with that in mind there is nothing preventing a landlord issuing the notice to expire at month 6 of the tenant’s occupation and then commencing possession proceedings at month 8 of the tenant’s occupation, that is 2 months after the notice expired.
However, the other key limitations on a section 21 notice must be remembered. So, a section 21 notice cannot be served in the first 4 months of a tenancy and must be used within 6 months of the date of service. In addition, a notice cannot be served unless the tenant has received:
- The how to rent guide;
- A valid EPC;
- A valid GSC; and
- The tenancy deposit prescribed information.
Additionally, the landlord will need to ensure that a property licence has been applied for if the property is in an area, or of a type, which is subject to licensing.
In light of the restriction on the courts powers, many readers will probably be asking why assured shorthold tenancies are granted for periods of less than 6 months? The answer is simple really, because not all landlords need a possession order to obtain possession. Many tenants will simply vacate on the expiry of the fixed term and for those that do not a Section 21 will need to be issued within the limitations explained above.