Whats the Difference Between an Assured and a Secure Tenancy?

ESG Says:

This information comes from FIRST Call, and describes the differences between Secure Tenancies (what you have as a council tenant) and Assured Tenancies (what you would have as a tenant of THCH.)

Part of the transfer agreement includes a reduction in the rights of THCH so that the two types of tenancy are made more or less the same - in other words, you would not lose the rights you have with the council if the transfer goes ahead.

The main thing to be aware of is that in neither case can you be evicted for no reason.

FIRST Call (residents independent adviser) says:

In this document:

We will compare a Secure and Assured tenancy, and discuss the best method of negotiating the content of a Transfer Assured Tenancy. We will also consider proposals from the government to create a single tenancy for Council and Housing Association Tenants.

WHAT IS A TENANCY AGREEMENT?

A Tenancy agreement sets the rights and obligations of Landlord and tenants, once signed it becomes a legal contract. It establishes the relationship between landlord and tenant and identifies what action can be taken if problems arise. A Housing Act sets out the minimum standards required by statutory law. The Landlord can improve on these standards within the terms of a tenancy agreement, by contractual law

SECURE TENANCY

As a Council tenant you have a Secure Tenancy created by the 1985 Housing Act. This Act sets out rights, responsibilities and minimum standards. The tenancy agreement should set out what the Council has to do and your obligations as a tenant.

ASSURED TENANCY

This tenancy was created by the 1988 Housing Act, and is for Housing Association Tenants. At this time Housing Associations (HA) and other Registered Social Landlords (RSL) can only offer an Assured Tenancy. There are a number of differences between a Secure and a standard Assured tenancy, which is offered to people who apply or are nominated to, a Housing Association.

"TRANSFER" ASSURED TENANCY

Before you are asked to vote on whether to transfer to a new landlord, the new tenancy agreement will be negotiated and circulated to all tenants on the estate. For residents, the aim of the negotiations is to ensure that similar rights are offered in the new tenancy to those you enjoy as a Secure tenant. Although the starting point is a standard assured tenancy, the Housing Association is expected to make changes to the agreement such as the inclusion of more rights, and limiting the reasons (grounds) they could use for possession.

SECURE TENANCY from 1985 Housing Act

RIGHTS

Council tenants are secure tenants and have the following rights:

Right to succeed to tenants spouse or close family member after 12 months
Right to assign to tenants spouse or close family member after 12 months
Right to mutual exchange
Right to take in lodgers and sublet
Right to repair
Right to make improvements
Right to information
Right to consultation
Right to Buy
Rent to Mortgage
Right to Manage

SECURE TENANCY from 1985 Housing Act

GROUNDS FOR POSSESSION

Secure tenants can only be evicted if the council proves to a court that one of these grounds are true. The court has discretion and will only evict if it believes it is reasonable:-

Rent is due and has not been paid, or a tenancy obligation is broken
Domestic Violence
Tenant or person living in the house has caused nuisance
Property in bad condition due to tenant´s neglect
Tenant bad treatment of common parts
Tenant made false statements to get tenancy
Tenant paid for a mutual exchange
Property let to tenant in connection with work and the work has ended.
Tenant lived in property temporarily while the landlord did works to their main home

Secure tenants can be evicted if suitable alternative accommodation is available:

Property overcrowded
To demolish or reconstruct property
Charitable landlord and the tenant occupation conflicts with charity´s aims.

Secure tenants can be evicted if it is reasonable and suitable alternative accommodation is available:-

Needed to be let to worker
Adapted for someone with a disability
Let by special needs housing association
Let by landlord for special needs
Too large for tenant who wishes to succeed or be assigned

ASSURED TENANCY

from 1988 Housing Act

RIGHTS

Right to succession spouses

GROUNDS FOR POSSESSION

The following are referred to as mandatory grounds for possession; if the Landlord has followed the correct procedure and the case is proven. the Court has no discretion but must issue a possession notice.

Grounds on which a court MUST order possession:-

Landlord needs it as their home

Landlord has a mortgage and needs to sell
Fixed term tenancy
Property is let to a religious minister
Housing Association leases a property and the landlord wants to demolish or reconstruct
Within 12 months of Tenants death when new tenant does not have right to succession
8 weeks rent owed

Grounds on which a court MAY order possession:-

These grounds differ from the above in that the Court has discretion and will only issue a possession notice if it believes it is reasonable to do so.

Suitable alternative accommodation is available

Rent was due when notice was served and when the case comes to court
Rent is paid persistently late
Tenancy agreement broken
Domestic Violence
Property in bad condition due to tenant´s neglect
Tenant bad treatment of common parts
Tenant has caused nuisance
Tenant let property due to employment now finished

"TRANSFER" ASSURED TENANCY

When you compare the rights and grounds for possession between the two tenancies above, the differences are clear. A Housing Association or Registered Social Landlord can reduce this difference by making written promises in a tenancy agreement. Negotiations between Tenants and the partner would result in a Transfer Assured Tenancy specific to Mansford Estate.

The draft tenancy agreement provided by the Council will contain the following:

What Rights you would enjoy if tenants voted to accept it
Which Grounds for possession could be used and the ones that are excluded from the agreement.
That the agreement cannot be changed without individual tenants written consent.

WHAT TO LOOK FOR IN A DRAFT TRANSFER ASSURED TENANCY AGREEMENT?

What grounds for possession have been excluded?
Does this include Grounds 1,2,3,4,5,6,8 and 11 of the 1988 Housing Act?
Does it make clear what Grounds can be used and why?
Is this made clear in an "avoidance of doubt" clause which is normally in bold in a prominent position?
What rights are protected?
Is there a rent guarantee?
What does it say about service charges?
Is it clearly written?
Having read it, do you understand responsibilities and obligations of the tenant and landlord?

PROPOSED CHANGES TO TENANCIES IN THE FUTURE

In 2001 the law commission was asked to review the complex statute law and subsequent judicial decision (case law) surrounding tenancy agreements that describe the relationship between landlord and tenant.

Following two consultation papers the Law Commission have published their recommendations in a report published 5 November 2003 (Law Com No.284). Recommendations include:

CONSUMER APPROACH ADOPTED

Tenancy agreements should be

fair and transparent
plain language must be used
rights and obligations made clear within the agreement
structure of the agreement is user friendly.

This reflects concerns raised by the Office of Fair Trading about some existing agreements.

SIMPLIFIED TENANCY AGREEMENTS

That there should be two main types of tenancy agreement:

Type One Agreement: high degree of security protected by an Act of Parliament. (Social landlords would be expected to use this agreement).
Type Two Agreement: security described by tenancy agreement (Private landlords would be expected to use this agreement).

NEXT STEPS

A draft Bill together with a final report will be published in 2004, but may be subject to significant amendments before it is passed. It would apply to new tenancy agreements after the date it became Housing Law. Agreements reached before that date would be expected to be brought within the scope of the Bill as far as possible.



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FIRST Call (residents independent adviser) says: In this document: We will compare a Secure and Assured tenancy, and discuss the best method of negotiating the content of a Transfer Assured Tenancy. We will also consider proposals from the government to create a single tenancy for Council and Housing Association Tenants. WHAT IS A TENANCY AGREEMENT? A Tenancy agreement sets the rights and obligations of Landlord and tenants, once signed it becomes a legal contract. It establishes the relationship between landlord and tenant and identifies what action can be taken if problems arise. A Housing Act sets out the minimum standards required by statutory law. The Landlord can improve on these standards within the terms of a tenancy agreement, by contractual law SECURE TENANCY As a Council tenant you have a Secure Tenancy created by the 1985 Housing Act. This Act sets out rights, responsibilities and minimum standards. The tenancy agreement should set out what the Council has to do and your obligations as a tenant. ASSURED TENANCY This tenancy was created by the 1988 Housing Act, and is for Housing Association Tenants. At this time Housing Associations (HA) and other Registered Social Landlords (RSL) can only offer an Assured Tenancy. There are a number of differences between a Secure and a standard Assured tenancy, which is offered to people who apply or are nominated to, a Housing Association. "TRANSFER" ASSURED TENANCY Before you are asked to vote on whether to transfer to a new landlord, the new tenancy agreement will be negotiated and circulated to all tenants on the estate. For residents, the aim of the negotiations is to ensure that similar rights are offered in the new tenancy to those you enjoy as a Secure tenant. Although the starting point is a standard assured tenancy, the Housing Association is expected to make changes to the agreement such as the inclusion of more rights, and limiting the reasons (grounds) they could use for possession. SECURE TENANCY from 1985 Housing Act RIGHTS Council tenants are secure tenants and have the following rights: Right to succeed to tenants spouse or close family member after 12 months Right to assign to tenants spouse or close family member after 12 months Right to mutual exchange Right to take in lodgers and sublet Right to repair Right to make improvements Right to information Right to consultation Right to Buy Rent to Mortgage Right to Manage SECURE TENANCY from 1985 Housing Act GROUNDS FOR POSSESSION Secure tenants can only be evicted if the council proves to a court that one of these grounds are true. The court has discretion and will only evict if it believes it is reasonable:- Rent is due and has not been paid, or a tenancy obligation is broken Domestic Violence Tenant or person living in the house has caused nuisance Property in bad condition due to tenant´s neglect Tenant bad treatment of common parts Tenant made false statements to get tenancy Tenant paid for a mutual exchange Property let to tenant in connection with work and the work has ended. Tenant lived in property temporarily while the landlord did works to their main home Secure tenants can be evicted if suitable alternative accommodation is available: Property overcrowded To demolish or reconstruct property Charitable landlord and the tenant occupation conflicts with charity´s aims. Secure tenants can be evicted if it is reasonable and suitable alternative accommodation is available:- Needed to be let to worker Adapted for someone with a disability Let by special needs housing association Let by landlord for special needs Too large for tenant who wishes to succeed or be assigned ASSURED TENANCY from 1988 Housing Act RIGHTS Right to succession spouses GROUNDS FOR POSSESSION The following are referred to as mandatory grounds for possession; if the Landlord has followed the correct procedure and the case is proven. the Court has no discretion but must issue a possession notice. Grounds on which a court MUST order possession:- Landlord needs it as their home Landlord has a mortgage and needs to sell Fixed term tenancy Property is let to a religious minister Housing Association leases a property and the landlord wants to demolish or reconstruct Within 12 months of Tenants death when new tenant does not have right to succession 8 weeks rent owed Grounds on which a court MAY order possession:- These grounds differ from the above in that the Court has discretion and will only issue a possession notice if it believes it is reasonable to do so. Suitable alternative accommodation is available Rent was due when notice was served and when the case comes to court Rent is paid persistently late Tenancy agreement broken Domestic Violence Property in bad condition due to tenant´s neglect Tenant bad treatment of common parts Tenant has caused nuisance Tenant let property due to employment now finished "TRANSFER" ASSURED TENANCY When you compare the rights and grounds for possession between the two tenancies above, the differences are clear. A Housing Association or Registered Social Landlord can reduce this difference by making written promises in a tenancy agreement. Negotiations between Tenants and the partner would result in a Transfer Assured Tenancy specific to Mansford Estate. The draft tenancy agreement provided by the Council will contain the following: What Rights you would enjoy if tenants voted to accept it Which Grounds for possession could be used and the ones that are excluded from the agreement. That the agreement cannot be changed without individual tenants written consent. WHAT TO LOOK FOR IN A DRAFT TRANSFER ASSURED TENANCY AGREEMENT? What grounds for possession have been excluded? Does this include Grounds 1,2,3,4,5,6,8 and 11 of the 1988 Housing Act? Does it make clear what Grounds can be used and why? Is this made clear in an "avoidance of doubt" clause which is normally in bold in a prominent position? What rights are protected? Is there a rent guarantee? What does it say about service charges? Is it clearly written? Having read it, do you understand responsibilities and obligations of the tenant and landlord? PROPOSED CHANGES TO TENANCIES IN THE FUTURE In 2001 the law commission was asked to review the complex statute law and subsequent judicial decision (case law) surrounding tenancy agreements that describe the relationship between landlord and tenant. Following two consultation papers the Law Commission have published their recommendations in a report published 5 November 2003 (Law Com No.284). Recommendations include: CONSUMER APPROACH ADOPTED Tenancy agreements should be fair and transparent plain language must be used rights and obligations made clear within the agreement structure of the agreement is user friendly. This reflects concerns raised by the Office of Fair Trading about some existing agreements. SIMPLIFIED TENANCY AGREEMENTS That there should be two main types of tenancy agreement: Type One Agreement: high degree of security protected by an Act of Parliament. (Social landlords would be expected to use this agreement). Type Two Agreement: security described by tenancy agreement (Private landlords would be expected to use this agreement). NEXT STEPS A draft Bill together with a final report will be published in 2004, but may be subject to significant amendments before it is passed. It would apply to new tenancy agreements after the date it became Housing Law. Agreements reached before that date would be expected to be brought within the scope of the Bill as far as possible.



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