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Government consultation: Abolition of assured shorthold tenancies

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30th October 2019

Following the Government’s announcement of its intention to repeal Section 21 of the Housing Act 1988 (“the Act”), and strengthen the grounds available under Section 8 of the Act, the Government’s consultation on the issue is now live.

The Government wants to balance the need for landlords to have flexibility in evicting their tenants to respond to change against the vulnerability of tenants to their landlord’s caprice.

It intends to do this by abolishing Section 21 of the Act, but expanding the grounds under Section 8 to all situations in which it is currently “appropriate” to utilise Section 21. Further, repossession actions must become a “faster, simpler process”.

It should be noted that the Government assures that during the course of its intended reforms it is committed to enacting transitional provisions to protect extant ASTs.

General Overview

The scope of the consultation is to canvass opinion on:

1. What implications removing the ability to grant assured shorthold tenancies may have in the future;
2. How landlords should be able to regain possession of properties once Section 21 of the Act has been abolished; and
3. How the processing of repossession orders through the courts could be improved.

Implications of the Abolition of ASTs

The Government seeks your perspective on the following issues:

1. The wider impact of abolishing ASTs generally (e.g. on issues such as homelessness and landlords’ choice of new tenants);
2. Under what additional circumstances it is appropriate that landlords should be permitted to end a tenancy where the tenant is not at fault;
3. Whether the abolition of the ability to grant ASTs should extend to all landlords, or just certain types of landlords (e.g. housing associations, providers of rent-to-but products);
4. Whether new fixed-term tenancies should have a minimum length before it rolls into an assured periodic tenancy (if so, for how long?);
5. Whether the ability to agree break clauses during the fixed term should be prohibited; and
6. Whether landlords and tenants should be able to opt for a periodic tenancy from the outset.

The Government notes that it will legislate to prevent tenancies from included clauses that increase the rent after the fixed term has ended. If landlords want to increase the rent, this must be negotiated on the grant of a new tenancy or by using Section 13 of the Act.

As for tenancy deposit protection requirements, and the additional requirements prescribed by the Deregulation Act 2015, the Government intends to look into the best way to carry those protections across from the existing legislation into any new scheme. However, it recognises that the current scheme is intended to prohibit landlords from evicting their tenants in retaliation for the tenants raising concerns about their landlords’ behaviour.

This will largely be preserved by the abolition of Section 21 in any event, as Section 8 will usually require a fault-based reason to evict tenants. The Government does not state how or if it intends to translate e.g. the requirement to provide gas safety certificates to tenants into a prohibition on the service of notices pursuant to Section 8 where this requirement has not been complied with.

The Tenant Fees Act 2019 will remain in force for the new scheme.

Widening the Grounds Under Section 8 of the Act

The Government seeks your opinions on the following potential widening of grounds under Schedule 2 of the 1988 Act:

1. Widening Ground 1 –
   • Should this include where the landlord desires that the property be a main home for another family member, who is not the landlord?
   • Should the requirement that the landlord have lived at the property previously be removed?
   • Should the requirement to serve a prior notice on the tenant that they may seek possession under Ground 1 be removed?
   • Should a landlord be able to use Ground 1 before the fixed term of the tenancy has come to an end?
   • Should landlords be prohibited from using Ground 1 during the first two years of the tenancy, regardless of the length of the fixed term?
   • Should the court have a jurisdiction to determine whether it is reasonable to lift any such two-year prohibition?
   • Should the current requirement of two months’ notice under Ground 1 remain, be shortened, or be lengthened?
2. A new ground for when landlords intend to sell the property –
   • Should a landlord have to provide prior notice of this ground?
   • Should it be mandatory, if intention to sell is proven?
   • Should there be a two-year prohibition on use of this ground?
   • What should the notice period for the ground be?
3. Restructuring Grounds 8, 10 and 11 –
   • Should there be a two-week notice once the tenant has accrued two months’ arrears?
   • Should the threshold for arrears on the day of the hearing be reduced to one month?
   • Should the ground be a discretionary ground if the arrears are lower than the hearing threshold at the date of the hearing?
   • Should the ground be a mandatory ground if the arrears are lower than the hearing threshold at the date of the hearing, but the landlord can prove a pattern of behaviour that shows the tenant built up arrears and paid these down before the hearing on previous (three?) occasions?
4. The Government is also seeking your views on the reform of grounds for possession for –
   • Domestic violence cases (and further protections for victims of domestic abuse);
   • When tenants have prevented landlords from maintaining legal safety standards;
   • Student lets;
   • Short-term lets;
   • Use of premises for religious work; and
   • Agricultural land.

Improving the Court’s Repossession Procedure

The Government seeks your input on how the courts can deal with Section 8 possession claims more efficiently. In particular –

1. Whether the accelerated possession procedure should be retained and expanded for use in Section 8 cases. If so, for which grounds?
2. If it should provide guidance on how stronger clauses in tenancy agreements could make it easier to evidence anti-social behaviour cases.

The Government wants your feedback on your experiences of having tried to evict tenants on grounds related to anti-social behaviour (in particular the evidential threshold).

It also wants your feedback on your experiences with having made possession claims generally. This includes the level of cost you incur in accelerated and non-accelerated cases.

Responding

The Government is inviting responses to its consultation until 11:45pm on 12 October 2019.

You can read the full consultation paper, and FAQ, and find the details of how to respond here.

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