Which applies? 1988 Act or 1996 Act?

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  • Which applies? 1988 Act or 1996 Act?

    Hello, If a tenant has an assured tenancy under the 1988 act, signed in January 1997 shortly *before* the instigation of the 1996 act in February 1997, in terms of arrears and rights to repossession is the tenant governed by the periods in the 1988 act (three months, I think) or is the 1996 act retrospective, so that the period of arrears allowing repossession would be two months?

    Thank you

    Rbob

  • #2
    I don't think that the 1996 act is retrospective in the same way that the 1988 act was not retrospective over all Harold Wilson's regulated tenancies which still exist today and enable many tenants to occupy properties at well below an economic rent for life and the lives of their descendants.

    P.P.
    Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

    Comment


    • #3
      The HA1988 is the dominant Act; the 1996 Act just amends it and does not have precedence. The 1996 Act therefore reduces the S.21 Notice period to a minimum of 2 months from 3.

      The only trouble is unless you served a S.20 Notice before the tenant moved in you now have an Assured Tenancy and your rights of possession are severely reduced.
      The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

      Comment


      • #4
        Thank you both. Paul, if I may just be clear. In my case, bearing in mind the tenant has an agreement under the 1988 Act, they would need to be three months (as opposed to the 1996 Act amended two months) in arrears before any proceedings could be instigated. Is this correct?

        You mention restrictions because of the Assured Tenancy. May I also ask how their (and my) position changes, if at all, when their ten-year agreement comes to an end next January. As I understand it they are still virtually guaranteed continuity of tenancy. Is this correct?

        Many thanks

        Bob

        Comment


        • #5
          The precise wording of the 1996 Act is:

          101. In Part I of Schedule 2 to the Housing Act 1988 (grounds on which court must order possession) in Ground 8 (rent unpaid for certain periods)-
          (a) in paragraph (a) (rent payable weekly or fortnightly) for "thirteen weeks"' there shall be substituted "eight weeks"', and
          (b) in paragraph (b) (rent payable monthly) for "three months"' there shall be substituted "two months"'.

          As I read it, the 1996 act changes the 1988 Act and therefore has retrospective effect. To answer your specific question: two months, I think, not three.
          Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

          Comment


          • #6
            Rbob - a ten-year tenancy? That certainly is not an AST because the maximum for an AST is 5 years.

            It looks to me as if you have unwittingly created an Assured Tenancy under which the tenants have effectively a lifelong security and then potentially a succession tenancy thereafter and if this is the case, then PaulF's second paragraph is correct. Even if you did serve a S20 notice, you cannot create an AST of 10 years so the court would likely order it to be reverted to an AT.

            However, this does not affect your right to possession under S8 ground 8 (8 weeks/2 months arrears) and in this context, the AT tenant has no more rights than an AST tenant. As soon as 8w/2m arrears are prevalent, serve a S8 notice and follow it through with court proceedings.

            Comment


            • #7
              davidjohnbutton, thank you for your response. This is not an Assured Shorthold Tenancy, but, simply, an Assured Tenancy signed for a term of ten years in January 1997, a month before the 1996 Act came into force. The actual agreement states that it is under the 1988 Housing Act. This is why I am, or was, unclear as to the terms regarding repossession in the context of arrears.

              Comment


              • #8
                But you cannot have an assured tenancy on a fixed term of 10 years UNLESS it is one of the returning occupier types?

                The only way to gain possession of this tenancy would be misuse of the property or the statutory ground 8 of 8weeks/2months rent arrears in the usual way.

                Comment


                • #9
                  I'm looking at the agreement now DJB. It's an Assured Tenancy Agreement (whole building) under the Housing Act 1988. It's for a fixed term of 10 years from and including January 6th, 1997

                  Comment


                  • #10
                    well, this is the housing act 1988 http://www.opsi.gov.uk/acts/acts1988...80050_en_1.htm and nowhere does it say that an assured tenancy can be for ten years or any other fixed term.

                    An AT is for life except where the tenant falls into arerears of rent or one of the other grounds for possession applies. An AST can only be for a maximum of 5 years - 1/2/3 by ordinary contract, 4 and 5 by deed.

                    It appears to me that the contract/agreement is defective.

                    Comment


                    • #11
                      Originally posted by davidjohnbutton
                      well, this is the housing act 1988 http://www.opsi.gov.uk/acts/acts1988...80050_en_1.htm and nowhere does it say that an assured tenancy can be for ten years or any other fixed term.

                      It appears to me that the contract/agreement is defective.
                      An assured tenancy can certainly be for a fixed term in accordance with the Act (See HA 1988 5(2)). The point is that after the fixed term, a periodic tenancy comes into effect which normally would continue indefinitely.

                      The fact that it specifies a ten year term would not make this contract defective.
                      Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

                      Comment


                      • #12
                        Thank you lawstudent. You say it would 'normally continue indefinitely'. Apart from the obvious - arrears, for example - what abnormalities might exist or occur to change this situation?

                        Comment


                        • #13
                          Originally posted by Rbob
                          Thank you lawstudent. You say it would 'normally continue indefinitely'. Apart from the obvious - arrears, for example - what abnormalities might exist or occur to change this situation?
                          The grounds for possession are in Schedule 2 to the Act - see above link.
                          Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

                          Comment


                          • #14
                            I see on reading further that you re right lawstudent - I was thinking alongside of the terms of an AST where after a fixed term you can recover possession or let the tenancy continue into a periodic one.

                            However, unless one of the grounds specified for possession applies - our OP will not be able to recover possession at the end of the fixed period -= so I claim to still be correct in that part.

                            Must admit - this is a relatively new one on me!

                            Comment


                            • #15
                              OP? So obvious it won't come to mind, no doubt.

                              Comment

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