Any legal secretaries and PAs accustomed to working within this particular area of law will realise that it is essential to maintain an appreciation of the main types of security of tenure. It is imperative to stay on the ball if you are not dealing with this type of case on a regular basis, as this knowledge will soon become hazy and may even be forgotten.
A tenant’s security of tenure dictates the lengths to which a landlord will need to go in order to legally evict. Generally speaking, tenants who have local authorities as their landlord enjoy the most security and are often able to remain with their property even if they breach the terms of their tenancy agreement in any way. Private tenants are usually far less protected and it is often much easier for their landlord to evict them.
Within this article, we will take a look at the main types of tenancies that you can expect to deal with if you are working in this area of law. We will also go on to consider the legal proceedings that a landlord would be expected to take to evict a tenant who had breached the contract.
Secure tenants enjoy one of the strongest levels of security of tenure. If a secure tenant does breach the terms of the tenancy agreement, it would be fair to say that the landlord (a local authority) would have a bit of an uphill struggle to legally evict. Court hearings and proceedings tend to be in favour of secure tenants. In fact, landlords always have to prove that it is reasonable for a court to grant an outright possession order and judges are furnished with plenty of discretion when adjudicating in these circumstances.
If a district judge were to find in favour of the landlord, the judge most likely would grant either a suspended possession order or a postponed possession order. Both of these would entitle the secure tenant to remain in his or her home but would mean that the tenant is obliged to adhere to specific conditions to remain there. Outright possession orders and warrants of eviction are usually granted only in exceptional circumstances where a tenant has failed to make any effort to stay within the terms of the tenancy agreement.
Local authorities are aware of the complicated procedures that must be followed to legally evict a tenant, and this is the main reason why introductory tenancies have become more and more prevalent. These usually last for a 12-month period and they absolutely do not extend the same level of security to tenants as do secure tenancies. The tenants are expected to comply with the terms of the tenancy for the 12-month period and thereafter they will be promoted to secure tenant status.
If a tenancy commenced between 15 January 1989 and 27 February 1997, most of these are assured tenancies by default. If a tenancy commenced before this period, the tenant may be a protected tenant. As can be expected, however, these tenants are becoming fewer and further between now, so we will not cover them in this article.
Assured tenancies, however, are still being created today. They are often the case with tenants who are a part of housing associations, for example. Assured tenants enjoy a higher level of security of tenure compared with assured shorthold tenants. A landlord can commence action against an assured tenant only when he or she has specific grounds to do so. However, unlike with secure tenancies, where a judge has discretion over the orders that may be granted, if a landlord can prove one of the ‘mandatory grounds’ for possession, a judge would have no other choice than to grant an outright possession order. Once this order has expired, the landlord would then be able to apply to the court for a warrant of eviction. Mandatory grounds cover the more serious breaches of a tenancy agreement – for example, when a tenant has failed to pay at least eight weeks’ (or two calendar months’) worth of rent.
Assured shorthold tenants
This is the difficult one, and unfortunately it has been the default level of security of tenure for most private tenants since 28 February 2008. Unless the tenant is under the small amount of protection afforded through a ‘fixed term period’, which provides the same level of protection as an assured tenant enjoys, there is one nasty little trick that is always lurking up a landlord’s sleeve: a section 21 notice.
Landlords have been provided with an absolute get-out clause in that they are able to end a tenancy either at the end of a fixed term or when an assured tenant is known as a ‘statutory periodic assured shorthold tenant’ (basically, once a fixed term has ended). What’s more, there are no defences against a section 21 notice. Provided the notice has been lawfully served (and it’s always worth having this verified), the tenant will be required to leave once all procedures have been followed.
There are other levels of security of tenure that have not been covered here, but it is less likely that you would encounter these whilst working as a legal secretary or PA. As you can see, the legal proceedings that would need to be followed in order to evict a tenant will totally depend on the level of security of tenure that the tenant enjoys (or not, as the case may be). It is essential to maintain your working knowledge of security of tenure so that you are aware of the actions that will need to be taken on both sides.