Fixed Term Tenancies and Probationary Periods – High Court Guidance

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Fixed term tenancies, incorporating probationary periods, are a common means by which social housing providers weed out potential nuisance tenants and ensure that their housing stocks remain available to those who really need them. A High Court ruling gave guidance on how such tenancies work in practice.

The case concerned a woman who was granted an assured shorthold tenancy of a flat for a fixed term of seven years. The tenancy was subject to a 12-month ‘starter’ period, which could be extended to 18 months. The lease, which was in common form, contained a break clause which provided that, during the probationary period, the tenancy could be terminated on two months’ notice.Flats

The landlord, a social housing provider, exercised the break clause and launched possession proceedings after receiving complaints of antisocial behaviour on the woman’s part. She pleaded that, by virtue of Section 21(1B) of the Housing Act 1988 (the Act), she was entitled to receive six months’ notice of termination and that the notice served upon her was thus invalid. That argument, however, failed to convince a judge following a preliminary hearing.

In dismissing the woman’s appeal against that decision, the Court noted that the six-month notice period contained within Section 21(1B) provides protection, in the form of advance notice and information, for tenants of registered social housing providers who have fixed term tenancies lasting not less than two years.

The Court found that, on giving the woman two months’ notice, the landlord created a statutory periodic tenancy pursuant to Section 5(2) of the Act. That tenancy was not for a fixed term of not less than two years and could thus be brought to an end on giving two months’ written notice. Further issues in the possession proceedings, including the woman’s defence under the Equality Act 2010 and public law principles, remained to be considered.

Livewest Homes Limited v Bamber. Case Number: 8BS0031C