2 Granting an Assured Shorthold Tenancy

(a)General

11.66 Any assured tenancy which is granted on or after 28 February 1996,¹⁵⁴ or which comes into being on termination of a fixed term assured shorthold granted on or after that date, will be an assured shorthold tenancy unless it falls within one of a limited number of exceptions.¹⁵⁵ In practice this means that a residential tenancy let at a rent above the qualifying threshold¹⁵⁶ will normally be an assured shorthold, irrespective of whether it is a periodic or fixed term tenancy, unless the landlord gives notice at the time of grant that it is not to be an assured shorthold tenancy, or the tenancy agreement contains an express stipulation to that effect.¹⁵⁷ It is unclear whether the notice must be in writing, but the preferable view is that a written notice is required to exclude the creation of an assured shorthold tenancy¹⁵⁸ Simply writing ‘assured tenancy’ on the tenants rent book will not be sufficient notice that the tenancy is not to be an assured shorthold, as an assured shorthold is itself a species of assured tenancy.¹⁵⁹ The tenancy does not have to be a fixed term, and the landlord need give no prescribed shorthold notice.

11.67 Where an assured shorthold tenancy is granted to an agricultural worker, however, special rules apply:

•The requirement to serve a prescribed shorthold notice at the grant of the tenancy has been preserved (see below)

•Following the relaxation of the rules by the Housing Act 1996, it is now possible to grant an assured shorthold tenancy to a tenant who previously enjoyed a fully assured tenancy. In this case the tenant must give notice to the landlord, prior to the grant of the tenancy, stating that the tenancy is to be an assured shorthold.¹⁶¹ This facility does not apply to agricultural occupancies, however.

•Where there is a pre-existing assured shorthold tenancy, the consequence of these special rules is that a landlord granting a second assured shorthold to an existing farm worker, who satisfies the agricultural worker condition, must serve a prescribed shorthold notice before granting the second tenancy. If he does not, the tenancy will be an assured agricultural occupancy with full security of tenure – or will become an assured agricultural occupancy upon the tenant’s subsequent satisfaction of the agricultural worker condition once he has completed 91 weeks’ employment in agriculture.

(b)Agricultural Workers

11.68 By virtue of Schedule 2A para 9 of the 1988 Act an assured tenancy will not be an assured shorthold if it is one in the case of which the agricultural worker condition is for the time being fulfilled with respect to the dwelling house subject to the tenancy.¹⁶² However, this does not apply if, before it was entered into a notice in prescribed form, stating that the tenancy is to be a shorthold tenancy is served on the tenant by the person who is to be the landlord.¹⁶³ It follows that, if the proposed tenant is a farm worker who has completed 91 weeks work in agriculture out of the previous 104, and who therefore satisfies the agricultural worker condition, the landlord must serve a prescribed shorthold notice before the commencement of the tenancy if it is to be an assured shorthold.

11.69 It should be appreciated when letting accommodation to farm workers that the agricultural worker condition might become satisfied at some point after the tenancy is created eg on the tenant completing 91 weeks work in agriculture. At this point, if no shorthold notice has been given, the tenancy will cease to be an assured shorthold and become (instead) an assured tenancy or assured agricultural occupancy – with, as a consequence, considerably greater security of tenure. It follows that, when letting accommodation to farm workers, the landlord will always be well advised to serve a prescribed shorthold notice on grant. This will prevent the tenancy later ceasing to be a shorthold, and becoming instead an assured agricultural occupancy, if and when the tenant subsequently satisfies the agricultural worker condition for tied cottage protection. If the landlord serves the shorthold notice, the tenancy will remain an assured shorthold whether or not the agricultural worker condition is subsequently satisfied by the tenant.¹⁶⁴ Different considerations apply, of course, when letting farm cottage accommodation to non-farm workers.