Introduction

Please be aware that this is a general guide to a very complex area of law that is constantly changing. You should contact the Housing Options Team on the numbers below or at housingadvice@merton.gov.uk for more detailed information and help with dealing with problems you may be experiencing.

Assured Tenancies

These are tenancies regulated by the Housing Act 1988. Assured tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977. For more information on protection from eviction, Landlord harassment and illegal eviction.

To be an assured tenant you must meet the following conditions:

• The tenancy must have commenced after 15 January 1989 but before 28 February 1997 and
• Landlord is non-resident and
• No notice was served at the start which said it was shorthold and
• Landlord is a private individual, company or registered housing association

After 28 February 1997 an Assured tenancy can only be created if the landlord serves notice stating the tenancy is to be Assured. For a tenancy to be Assured the tenants must have exclusive possession of at least one room and occupy it as their only or principal home.

Assured tenancy rents are market rents, which means that it is competition from other Landlords, which determines how much is charged. You should decide before you sign a contract whether or not you can afford it. Within period of any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract, or a contract has ended, a rent can be increased by service of a valid Notice of Rent Increase or by provision of new contract. If the Landlord issues a Notice of Rent increase, tenants can appeal to the Rent Service to determine whether the Landlord has proposed a market rent.  

Assured Shorthold Tenancies

These are often referred to as shorthold tenancies or AST’s. They are the most common type of tenancy in the private sector today. These tenancies are also regulated by the Housing Act 1988. Assured shorthold tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977. For more information on protection from eviction, go to Landlord harassment and illegal eviction.

To be an assured shorthold tenant you must meet the following conditions:

• The tenancy must have commenced after 15 January 1989
• Landlord is non-resident and
• Landlord is a private individual or company

Those tenancies that commenced before 28 February 1997 can only be shorthold tenancies where a valid ‘notice of shorthold’ was served prior to occupation and the tenancy was for a minimum of six months. This is the case even if a tenancy agreement states that it is a shorthold tenancy. Tenancies on or after 28 February 1997 will automatically be assured shorthold tenancies.

The tenants must have exclusive possession of at least one room and occupy it as their only or principal home.

Assured Shorthold tenancy rents are market rents, which means that it is competition from other Landlords that determines how much is charged. You should decide before you sign a contract whether or not you can afford it. Within any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract, or a contract has ended a rent can be increased by service of a valid Notice of Rent Increase or by provision of new contract. If the Landlord issues a Notice of Rent increase, tenants can appeal to the Rent Service to determine whether the Landlord has proposed a market rent.  

Protected Tenancies

Protected tenancies are also called regulated rent act or fair rent tenancies. Their tenancies are regulated by the Rent Act 1977. Protected tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977. For more information on protection from eviction, Landlord harassment and illegal eviction

To be a protected tenant you must meet the following conditions:

• Commenced before 15 January 1989 and
• Landlord is non-resident and
• Landlord is a private individual or company

After 15 January 1989 no new Protected tenancy can be created. There are some exceptions but these are limited to existing tenants moving to a new property provided by the same landlord under very specific circumstances.

For a tenancy to be Protected the tenants must have exclusive possession of at least one room but do not always have to occupy the property as their only or principal home - there are complicated rules about this.

Protected Tenancy rents are called fair rents. This means they are not subject to market forces and are determined by the Rent Office.  

Unprotected Tenancies

Unprotected tenants are sometimes called Unprotected Occupiers. Neither the Housing nor Rent Acts regulate these tenancies. Unprotected tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977. For more information on protection from eviction, Landlord harassment and illegal eviction

To be an unprotected tenant you must meet the following conditions:

• The tenancy commenced after 15 January 1989
• Landlord is resident but
• Neither landlord or landlord’s family shares the accommodation

Sharing accommodation does not include access, stairs, hallways or storage.

The tenant/s must have exclusive possession of at least one room and occupy it as their only or principal home. The landlord must occupy the dwelling as her only or principal home. Being resident means living in the same property as the tenant unless it is a purpose built block of flats.

Unprotected tenancy rents are market rents, which means that it is competition from other Landlords that determines how much is charged. You should decide before you sign a contract whether or not you can afford it. Within period of any current contract a rent can only be increased with the agreement of both landlord and tenant. Where there is no contract, or a contract has ended a rent can be increased by service of a valid Notice of Rent Increase or by provision of new contract. If the Landlord issues a Notice of Rent increase, tenants can appeal to the Rent Service to determine whether the Landlord has proposed a market rent.  

Excluded Occupiers

Excluded Occupiers are often referred to as bare licensees. Neither the Housing nor Rent Acts regulate these tenancies. Excluded Occupiers are not afforded protection from eviction under the Protection from Eviction Act 1977. An example of an excluded occupier is a lodger.

To be an excluded occupied you must meet the following conditions:

• The occupation commenced after 15 January 1989
• Landlord or member of landlord’s family is resident  and
• Landlord or member of landlord’s family was resident on occupation and
• Occupier shares accommodation with landlord or member of landlord’s family

The amount of rent charged on a bare licence is agreed between Landlord and tenant.

Possession Proceedings

The are different requirements and types of notice that must be served to initiate possession proceedings. These depend on what type of tenancy you have. Assured and Assured shorthold tenancies are regulated under the Housing Act 1988. Notices served under the Housing Act 1988 must meet certain criteria and include prescribed information that details a tenant's continued right of occupation and ability to seek advice. This type of notice is called a Notice Seeking Possession. These notices must include the reasons or grounds why possession is sought.

With Assured shorthold Tenancies the most common notice served is a section 21 notice. There is no requirement to give a reason why possession is served. Section 21 notices must be at least two months in length and cannot be used in the initial six months of a tenancy. There are some other technical points regarding valid section 21 notices, and you should seek advice if you are not sure.

However, a landlord cannot make a claim for money owed under this ground and might therefore serve notice under grounds 8, 10 and 11 of Schedule 2 of the Housing Act 1988. The length of notice under these grounds is only 2 weeks. A claim for possession can therefore be made sooner than under S.21.

With Protected and Unprotected tenancies a landlord is also obliged to serve notice to recover possession. This type of notice is called a Notice To Quit.

To be valid, a Notice to Quit must meet certain criteria and include prescribed information that details a tenant’s continued right of occupation and ability to seek advice.

Where a landlord makes a claim for possession at court, prior to deciding a claim the courts will write to the occupier. This is called a summons. The summons allows the occupier to state any legal arguments against a landlord’s claim. The summons identifies the date for any court hearing and details of the landlord’s claim. These particulars of claim will include the reasons in law under which the landlord will claim possession under, the costs of the claim a tenant will be liable for and details of any claim for money (rent owed) if applicable.

With the exception of claims for possession under section 21 for Assured shorthold tenancies, all claims for possession require a court hearing. When a Landlord has sought possession under section 21, this is through the accelerated procedure where there is no hearing unless there is a technical error in the Landlords claim.

In the summons there is a reply form that enables the tenant to raise a defence, if any to the Landlords claim, and allows them to ask for more time if possession is granted. If you require help with completing the reply form, please contact the Housing Options Section.

A court will make a decision at a hearing to award or refuse possession. A court’s decision is based on that evidence provided to it and any legal argument for and against possession to be awarded. A court has limited authority to use its judgement in these matters.

A landlord in claiming possession must identify for what legal reason/s possession is sought. Some reasons are discretionary. This means that even where a reason is proved a court has the authority and discretion to refuse possession if it considers this just and equitable to do so. Other reasons are mandatory. This means that where a reason is proved the court has no discretion and must award possession.

If the outcome of a possession action is that the Court Orders the tenant to give possession of the property, the tenant will receive a court order that will give from two to six weeks to leave the property. The Court will usually give only two weeks, but can give more if the tenant has exceptional circumstances. When this expires, the Landlord has to apply for a Bailiff’s warrant to execute the order. The tenant will receive notice of when this will happen.

If information comes to light after possession was granted that would have meant that the Court might have taken a different view, it may be possible to set aside or vary the terms of the order/warrant. For more information and assistance with this please contact the Housing Options Section.

Tenancy deposit protection

If a landlord takes a deposit, they should within 14 days of receiving a deposit, give the tenant details of how their deposit is protected. There are two types of tenancy deposit protection scheme available for landlords and letting agents.  All schemes provide a free dispute resolution service.  

What are Tenancy Deposit Schemes?

The schemes allow tenants to get all or part of their deposit back when they are entitled to it and encourage tenants and landlords to make a clear agreement from the start on the condition of the property.

The schemes:

• allow tenants to get all or part of their deposit back when they are entitled to it
• make any disputes easier to resolve
• encourage tenants and landlords to make a clear agreement from the start on the condition of the property

There are two types of tenancy deposit protection scheme available for landlords and letting agents.

Insurance-based schemes

• the tenant pays the deposit to the landlord
• the landlord retains the deposit and pays a premium to the insurer - the key difference to the custodial scheme

Within 14 days of receiving a deposit the landlord or agent must give the tenant the details about how their deposit is protected including:

• the contact details of the tenancy deposit scheme selected
• the landlord or agent’s contact details
• how to apply for the release of the deposit
• information explaining the purpose of the deposit
• what to do if there is a dispute about the deposit

At the end of the tenancy:

• if an agreement is reached about how the deposit should be divided, the landlord or agent returns all or some of the deposit
• if there is a dispute, the landlord must hand over the disputed amount to the scheme for safekeeping until the dispute is resolved
• if for any reason the landlord fails to comply, the insurance arrangements will ensure the return of the deposit to the tenant if they are entitled to it

Custodial schemes

• the tenant pays the deposit to the landlord or agent
• the landlord or agent then pays the deposit into the scheme

Within 14 days of receiving a deposit the landlord or agent must give the tenant the details about how their deposit is protected including:

• the contact details of the tenancy deposit scheme selected
• the landlord or agent’s contact details
• how to apply for the release of the deposit
• information explaining the purpose of the deposit
• what to do if there is a dispute about the deposit

At the end of the tenancy:

• if an agreement is reached about how the deposit should be divided, the scheme will return the deposit, divided in the way agreed by both parties
• if there is a dispute, the scheme will hold the deposit until the dispute resolution service or courts decide what is fair

The interest accrued by deposits in the scheme will be used to pay for the running of the scheme and any surplus will be used to offer interest to the tenant, or landlord if the tenant isn’t entitled to it.

Deposit service providers

• Deposit Protection Service (DPS) 
  The DPS is the only custodial deposit protection scheme, is free to use and open to all Landlords and Letting Agents. The service is funded entirely from the interest earned from deposits held. Landlords and Letting Agents will be able to register and make transactions online. Paper forms will also be available should internet access be an issue. The scheme will be supported by a dedicated call centre and an independent dispute resolution service.
• mydeposits (Tenancy Deposit Solutions Ltd) 
  TDSL is a partnership between the National Landlords Association and Hamilton Fraser Insurance. This insurance-based tenancy deposit protection scheme enables landlords, either directly or through agents, to hold deposits. Letting agents can also join the scheme.
• Tenancy Deposit Scheme 
  TDS is an insurance-backed deposit protection and dispute resolution scheme run by The Dispute Service that builds on a scheme established in 2003 to provide dispute resolution and complaints handling for the lettings industry. The new scheme enables letting agents and landlords to hold deposits.

Warning

If you take a tenancy deposit which should be protected but you fail to comply with the tenancy deposit protection legislation then:

• following a court order you face a penalty of three times the amount of the deposit – this is an automatic penalty and cannot be reduced
• you cannot serve a valid Section 21 notice so as to bring the tenancy to an end on the so called notice only/shorthold ground – it does not, however, stop you serving notice under Section 8 (e.g. in relation to rent arrears or other tenancy breaches)

Contact us

Housing Options
3rd Floor Floor
Civic Centre
Morden
SM4 5DX

Telephone: 020 8545 3636

Email: housingadvice@merton.gov.uk