england-and-wales eviction assured-shorthold-tenancy
Where is the line between an Assured Shorthold Tenancy and a more casual non-AST?
<p>Assured Shorthold Tenants have relatively strong protections from eviction. But when does one gain this status when in more casual arrangements particularly in which the (sub?) Landlord requires repossession of the premises are their own only home? Is there no weighing of relatively compelling interests between the two parties?</p>
<p>Consider the several following scenarios:</p>
<p>Tim rents an entire flat or alternatively a single bedroom through Airbnb for a week. (The landlord doesn't live in the same house.) Is he an AST?</p>
<p>Suppose he rents it for a month, or two months. At what point does he become an AST with corresponding PFE?</p>
<p>Larry goes to Berlin for a week-long holiday and sublets his HMO room on spare room.com to Theodore for the week. Upon returning Theodore declines to leave. Is s21 process required to evict him or do concepts of a protected intending occupier apply at the end of the agreed term? Does he then get a statutory periodic tenancy (SPT)?</p>
<p>Now what if Larry instead goes away for one month or three months and sublets his room (or flat if it makes a difference) for those periods. Again at what stage does it become AST?</p>
<p>Further, let us suppose that for Larry's fortnight holiday he collects a £300 deposit. Must this be accordingly protected given how casual the tenancy is?</p>

<p>All that matters is whether the tenancy falls within the statutory definition contained in the Housing Act 1988. Assured shorthold tenancies are subsets of assured tenancies, so first we need to look at the latter.</p>
<p><strong>1. Is the tenancy an assured tenancy?</strong></p>
<ul>
<li><a href="https://www.legislation.gov.uk/ukpga/1988/50/section/1" rel="nofollow noreferrer">Section 1(1)(a)</a>: tenant(s) must be individual(s).</li>
<li><a href="https://www.legislation.gov.uk/ukpga/1988/50/section/1" rel="nofollow noreferrer">Section 1(1)(b)</a>: at least one of the tenants must occupy the dwelling-house as their only or principal home.</li>
<li><a href="https://www.legislation.gov.uk/ukpga/1988/50/section/1" rel="nofollow noreferrer">Section 1(1)(c)</a>: the tenancy must not be excluded by in Section 1(2) or 1(6). Section 1(2) in turn refers to <a href="https://www.legislation.gov.uk/ukpga/1988/50/schedule/1" rel="nofollow noreferrer">Part 1 of Schedule 1</a> which contains a list of exceptions. They are quite detailed but, briefly, the following are excluded: tenancies with high rateable values, tenancies at very low rents, business tenancies, licenced premises, agricultural tenancies, student accommodation provided by universities etc., holiday lets, tenancies with resident landlords, crown tenancies, some local authority lets.</li>
</ul>
<p><strong>2. Is the assured tenancy an assured shorthold tenancy?</strong></p>
<ul>
<li><a href="https://www.legislation.gov.uk/ukpga/1988/50/section/19A" rel="nofollow noreferrer">Section 19A</a>: the tenancy must either have come into existence after Section 96 of the Housing Act 1996 came into force (the vast majority of cases) <strong>or</strong> it falls under <a href="https://www.legislation.gov.uk/ukpga/1988/50/section/20" rel="nofollow noreferrer">Section 20</a>.</li>
<li><a href="https://www.legislation.gov.uk/ukpga/1988/50/section/19A" rel="nofollow noreferrer">Section 19A</a>: the tenancy does not fall within one of the exceptions in <a href="https://www.legislation.gov.uk/ukpga/1988/50/schedule/2A" rel="nofollow noreferrer">Schedule 2A</a>.</li>
</ul>
<p>Turning to your scenarios:</p>
<p><strong>Tim rents an entire flat or alternatively a single bedroom through Airbnb for a week. (The landlord doesn't live in the same house.) Is he an AST?</strong></p>
<p>Not an AST; excluded by Schedule 1 as a holiday let.</p>
<p><strong>Suppose he rents it for a month, or two months. At what point does he become an AST with corresponding PFE?</strong></p>
<p>As long as it is a holiday let, it will not be an AST. It would only be an AST if it were Tim's only or principal home (and all the other criteria apply). There is no magical &quot;point&quot; at which it changes from one to the other; it's down to the reality of the facts.</p>
<p><strong>Larry goes to Berlin for a week-long holiday and sublets his HMO room on spare room.com to Theodore for the week. Upon returning Theodore declines to leave.</strong></p>
<p>This depends on the specifics of how it was let to Theodore. It sounds like a holiday let on the face of it though.</p>
<p><strong>Now what if Larry instead goes away for one month or three months and sublets his room (or flat if it makes a difference) for those periods. Again at what stage does it become AST?</strong></p>
<p>As above, it becomes an AST when all the criteria for an AST are met per the statutory definition.</p>
<p><strong>Further, let us suppose that for Larry's fortnight holiday he collects a £300 deposit. Must this be accordingly protected given how casual the tenancy is?</strong></p>
<p><a href="https://www.legislation.gov.uk/ukpga/2004/34/section/213" rel="nofollow noreferrer">Section 213(1) of the Housing Act 2004</a> only requires a deposit to be protected if the tenancy is a shorthold.</p>

<p>An Assured Shorthold Tenancy has an effective minimum term of 6 months, because a section 21 (&quot;no fault&quot;) eviction notice cannot be applied in the first 6 months of an AST. Hence if you want to let for less than this, an AST is not the right tool for the job.</p>
<p>Although ASTs are now the default type of tenancy - if certain conditions are met - other types of tenancy can be created if the tenancy agreement makes this explicit and other conditions are met. In particular, a tenancy used <em>specifically</em> for holiday lets (<a href="https://painsmith.co.uk/holiday-lets/" rel="nofollow noreferrer">and it really must be a holiday</a>) is regarded as an excluded tenancy by <a href="https://www.legislation.gov.uk/ukpga/1977/43/section/3A" rel="nofollow noreferrer">section 3A of the Protection from Eviction Act 1977</a>, and similarly in <a href="https://www.legislation.gov.uk/ukpga/1977/42/section/9" rel="nofollow noreferrer">section 9 of the Rent Act 1977</a> (see also <a href="https://england.shelter.org.uk/professional_resources/legal/renting/regulated_tenancies/tenancies_excluded_from_rent_act_protection" rel="nofollow noreferrer">here</a>), and so offers few of the protections that come with an AST.</p>
<p>If a tenant refuses to leave at the end of the tenancy, <a href="https://england.shelter.org.uk/housing_advice/eviction/eviction_of_lodgers_and_other_excluded_occupiers" rel="nofollow noreferrer">you can seek possession without getting a court order</a> (but without the use of force!).</p>
<p>In addition, for tax purposes, the law recognises the concept of a furnished holiday letting, and there's <a href="https://www.gov.uk/government/publications/furnished-holiday-lettings-hs253-self-assessment-helpsheet/hs253-furnished-holiday-lettings-2020" rel="nofollow noreferrer">official guidance</a> on what you would need to do so that your property meets these requirements:</p>
<blockquote>
<p>If the total of all lettings that exceed 31 continuous days is more than 155 days during the year, this condition is not met so your property will not be a FHL for that year.</p>
<p>Your property must be available for letting as furnished holiday accommodation letting for at least 210 days in the year.</p>
<p>You must let the property commercially as furnished holiday accommodation to the public for at least 105 days in the year.</p>
</blockquote>
<p>(The above quoted section has been edited. See the linked page for the full version.)</p>
<p><a href="https://The%20pattern%20of%20occupation%20condition%20%20If%20the%20total%20of%20all%20lettings%20that%20exceed%2031%20continuous%20days%20is%20more%20than%20155%20days%20during%20the%20year,%20this%20condition%20is%20not%20met%20so%20your%20property%20will%20not%20be%20a%20FHL%20for%20that%20year.%20The%20availability%20condition%20%20Your%20property%20must%20be%20available%20for%20letting%20as%20furnished%20holiday%20accommodation%20letting%20for%20at%20least%20210%20days%20in%20the%20year%20(140%20days%20for%20the%20tax%20year%202011%20to%202012%20and%20earlier).%20%20Do%20not%20count%20any%20days%20when%20you%E2%80%99re%20staying%20in%20the%20property.%20HMRC%20does%20not%20consider%20the%20property%20to%20be%20available%20for%20letting%20while%20you%E2%80%99re%20staying%20there.%20The%20letting%20condition%20%20You%20must%20let%20the%20property%20commercially%20as%20furnished%20holiday%20accommodation%20to%20the%20public%20for%20at%20least%20105%20days%20in%20the%20year%20(70%20days%20for%20the%20tax%20year%202011%20to%202012%20and%20earlier)." rel="nofollow noreferrer">This article</a> also mentions other requirements, including whether your mortgage and/or lease (as applicable) permit it, whether you might require planning permission, etc.</p>
<p>So in short: there is a clearly defined difference between ASTs and other tenancy types, but it generally needs to be explicit in the tenancy agreement, and there may also be other conditions that need to met. For holiday lets and similar, occupants have far fewer protections compared to an AST.</p>

<p>Further to Steve Melnikoff's answer:</p>
<p>My interpretation of the question is, &quot;what kinds of circumstances give rise to what kinds of tenancies?&quot;</p>
<p>Circumstances include but are not limited to an acceptance of a website's terms or conditions or a formal contract in writing. They include what has happened 'in practice' or 'on the ground'.</p>
<ul>
<li>one set of circumstances may be such that they give rise to a 'tenancy'</li>
<li>another of circumstances will be such that they do not give rise to a 'tenancy'</li>
</ul>
<p>Presently <a href="https://www.airbnb.co.uk/help/article/2908/terms-of-service#EU2" rel="nofollow noreferrer">the default/usual conditions for an Airbnb guest</a> include a <em>limited licence</em>:</p>
<blockquote>
<p>2.3 Accommodation Reservations. An Accommodation Reservation is a limited license to enter, occupy and use the Accommodation. The Host retains the right to re-enter the Accommodation during your stay, to the extent: (i) it is reasonably necessary, (ii) permitted by your contract with the Host, and (iii) consistent with applicable law. If you stay past checkout, the Host has the right to make you leave in a manner consistent with applicable law, including by imposing reasonable overstay penalties. You may not exceed the maximum number of allowed Guests.</p>
</blockquote>
<p>Here is a Landlord Law Blog article about <a href="https://landlordlawblog.co.uk/2013/01/15/renting-property-on-a-license/" rel="nofollow noreferrer">Renting property on a licence</a>.</p>
<p>An Airbnb 'host' might impose additional conditions or require different wording while still intending the effect of a limited licence or avoiding the creation of a tenancy (e.g. &quot;This is a holiday let&quot;).</p>
<p>While all the circumstances (including but not solely an agreement) are such that they indicate non-exclusive occupation, then they will tend to indicate there is no tenancy.</p>
<p>Circumstances such that they're unlikely to indicate a tenancy: a 'guest' agreed to stay for two weeks per the Airbnb booking and terms, with the 'host' changing the bedding, replacing the towels and cleaning the property during the stay.</p>
<p>Circumstances such that they may indicate or give rise to a tenancy: the 'guest' has stayed for months, paying a fixed amount each month, the 'host' hasn't entered the property or otherwise interfered with the occupation, the 'guest' has in effect enjoyed exclusive possession and in effect pays regular rent.</p>
<p>This <a href="https://england.shelter.org.uk/professional_resources/legal/renting/introduction_to_security_of_tenure/what_is_a_licence" rel="nofollow noreferrer">Shelter introduction to security of tenure</a> cites a case that had the effect of a finding that a single room within a hotel comprised a separate dwelling within the meaning of the Housing Act 1988 and in the circumstances of its long-term occupier (years-long) was subject to an assured tenancy (<a href="https://publications.parliament.uk/pa/ld200102/ldjudgmt/jd011011/uratem-1.htm" rel="nofollow noreferrer">Uratemp Ventures Limited v. Collins</a>).</p>
<p>A person (Larry) who sublets their HMO room is unlikely to be legally capable of doing so. Exactly what the landlord can do about Larry's 'guest' merits a separate question (I think there was some discussion about this in relation to a previous question of yours). <del>But in any case the landlord will need a court order of some kind to lawfully remove the 'guest' who refuses to leave.</del> &lt;- not sure about that. It may be sufficient to change the locks.</p>
<p>The landlord can claim Larry breached the contract between the landlord and Larry. And the landlord might claim that as Larry hasn't been in the property Larry isn't in a tenancy (therefore does not have the protections of a tenancy).</p>
