Is it an AST?

[Lawcruncher]

The HA 1988 says that "An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy" cannot be an assured shorthold tenancy. An assured shorthold tenancy is a tenancy. A statement that something is not a tenancy must be taken to exclude the possibility that it is an assured shorthold tenancy. So, if an instrument purporting to grant a licence is held to have granted a tenancy but contains a statement that it does not, does that mean that if the tenancy is assured it cannot be an assured shorthold tenancy? Indeed, we can go a step further and ask if a statement that the instrument creates a licence is a statement to the effect that it does not create an assured shorthold tenancy.

[leaseholder64]

I think the subtlety here may be lost on the person whose post probably triggered this.

What I believe it is suggesting is that a bogus licence agreement, purporting give no security of tenure, may actually make the tenant almost impossible to evict!

[MdeB]

The HA 1988 says that "An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy" cannot be an assured shorthold tenancy.

This is from S19A and Schedule 2 paragraph 3.

And S1 appears to say that all new tenancies are assured tenancies.

Indeed, we can go a step further and ask if a statement that the instrument creates a licence is a statement to the effect that it does not create an assured shorthold tenancy.

This appears to be the question that needs to be answered to determine if a tenancy that is purported to be a licence to occupy is an "assured" tenancy or an "assured shorthold" tenancy.

I'm not sure that stating it is a licence meets the requirement to state that it is not an assured shorthold tenancy (but I could argue either way).
But it would be good for the PRS if it were.

[jpkeates]

If an agreement says it is something, it is clearly asserting that it is not something else.

But if the agreement says that it is a licence, it also asserts that it isn't an assured tenancy which undermines the first element of the term in Housing Act 1988.

[DPT57]

In a recent thread the OP stated that his "licence agreement" included the phrase 'NO TENENCY IS CREATED BY THIS AGREEMENT'. It would be interesting to know whether this has been correctly transcribed from the actual document, but if so, can the mis-spelled TENENCY really be taken to unequivocally mean an AST?

[theartfullodger]

Is this not simply answered with Street v Mountford?
https://en.wikipedia.org/wiki/Street_v_Mountford
&
https://england.shelter.org.uk/legal...t_is_a_tenancy

[Lawcruncher]

The interesting point is that the Act refers to "a provision to the effect that the tenancy is not an assured shorthold tenancy" rather than providing that you have to say precisely that the tenancy is not an assured shorthold tenancy.

[KTC]

I think the subtlety here may be lost on the person whose post probably triggered this.

And also not necessarily to their long term advantages. They may well want the additional security of tenure, but equally with what's likely to be a dodgy landlord, they may prefer to be able to sue for a deposit protection penalty under AST and move on to better landlords.

[MdeB]

But if the agreement says that it is a licence, it also asserts that it isn't an assured tenancy which undermines the first element of the term in Housing Act 1988.

I don't see that that matters.
It may assert that it is not a tenancy, but if a Judge finds on the facts that it is a tenancy, then S1 HA 1988 says it is an assured tenancy (assuming S1 (1) (a), (b) and (c) are met).

[Lawcruncher]

I don't see that that matters.
It may assert that it is not a tenancy, but if a Judge finds on the facts that it is a tenancy, then S1 HA 1988 says it is an assured tenancy (assuming S1 (1) (a), (b) and (c) are met).

The question is though whether it is an assured shorthold tenancy.

[Lawcruncher]

And also not necessarily to their long term advantages. They may well want the additional security of tenure, but equally with what's likely to be a dodgy landlord, they may prefer to be able to sue for a deposit protection penalty under AST and move on to better landlords.

A good point.

If you are a landlord who has not protected the deposit and wants vacant possession are you going to argue that the tenancy is not an AST?

It is a bit of a mystery why deposit protection does not extend to all assured tenancies, not to mention licences. Restricting it to ASTs does in fact pose a bit of a conundrum because, unless the tenancy is one which definitely cannot be an AST, a landlord cannot be certain that a tenancy will be an AST. What would a court make of an argument by a landlord that when he took the deposit the tenancy he proposed to grant was only potentially an AST? And what if the tenant gave an assurance that he would only be using the property as his main residence?

[leaseholder64]

I imagine that it doesn't extend to licences because that would affect the genuine licences used by people taking on lodgers.

I guess very few dodgy landlords give out assured tenancies these days!

[jpkeates]

I don't see that that matters.
It may assert that it is not a tenancy, but if a Judge finds on the facts that it is a tenancy, then S1 HA 1988 says it is an assured tenancy (assuming S1 (1) (a), (b) and (c) are met).

It matters because an assured shorthold tenancy can use notice under s21 Housing Act 1988 (as well as s8), while an assured tenancy can't.

[MdeB]

But if the agreement says that it is a licence, it also asserts that it isn't an assured tenancy which undermines the first element of the term in Housing Act 1988.

It matters because an assured shorthold tenancy can use notice under s21 Housing Act 1988 (as well as s8), while an assured tenancy can't.

I thought you were saying that by asserting that it was not a tenancy, then it could not possibly be an assured tenancy, and my reply was based on that interpretation.

If that is not what you were saying, then could you explain your intent with the phrase "undermines the first element of the term in Housing Act 1988"

[jpkeates]

I thought you were saying that by asserting that it was not a tenancy, then it could not possibly be an assured tenancy, and my reply was based on that interpretation.

I think that it can be an assuted shorthold tenancy.
Lawcruncher suggested that there was an argument that it might not be.