Tenancies that CANNOT be an assured (shorthold) tenancy

An assured shorthold tenancy is the most common type of agreement used by landlords in England in the private rental sector to give tenants the right to live in the property.

The main difference between an assured and assured shorthold tenancy is that a section 21 notice can not be served with assured.

Schedule 1 of the Housing Act 1988 contains certain tenancies that cannot be assured or an assured shorthold tenancy agreement, such as resident landlords and tenancies where the rent payable is greater than £100,000 per annum.

A brief list of the exclusions are:

• Tenancies entered into before commencement (of the Housing Act)
• Tenancies of dwelling-houses with high rateable values and where rent payable greater than £100,000 per year
• Tenancies at a low rent (in Greater London, £1,000 or less a year and, if it is elsewhere, £250 or less a year)
• Business tenancies
• Licensed premises (accommodation in the same building as pubs, nightclubs etc.)
• Tenancies of agricultural land
• Tenancies of agricultural holdings
• Lettings to students by universities
• Holiday lettings
• Resident landlords
• Crown tenancies
• Local authority tenancies etc.
• Transitional cases

In addition to the exclusions contained in Schedule 1, a couple of other tenancies cannot be assured shorthold tenancy agreement because of how section 1 Housing Act 1988 is worded.

• The tenancy must be to an individual; therefore, a company let cannot be an assured [shorthold] tenancy.
• The tenancy must be the tenant's only or principal home; therefore, if the tenant has another house that is their primary home, the tenancy cannot be assured.

Virtually all the exclusions that relate to a private landlord mean that the tenancy will be a contractual tenancy, often referred to as a common law tenancy. An exclusion would be the case even if the landlord granted an assured shorthold tenancy because the law overrides the contract. It doesn't matter what label you put on a tenancy [Street v. Mountford [1985] 2 W.L.R. 877].