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Property Litigation Q&A September 2021: The need for a suitable AST (Assured Shorthold Tenancy Agreement)

View profile for William Bartley
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Property Litigation Q&A September 2021: The need for a suitable AST (Assured Shorthold Tenancy Agreement)

Property Litigation specialist lawyer, Will Bartley, provides advice on why a suitable AST is required to be provided by the landlord at the start of the tenancy; discussing what this has meant for landlords and tenants.

Will goes on to explain some common issues that can be caused when a suitable AST is not in place.

For further information on the residential lettings generally, the August Q&A can be read here.

What is an AST?

An AST is an abbreviation of an ‘Assured Shorthold Tenancy’ agreement. This is the most common format of letting of residential property, and the vast majority of people who are renting a property in the UK will be doing so under such an agreement.

ASTs are typically 6 or 12 months in fixed length at the outset, however this can be more, and at the expiry of the fixed term they roll over into a periodic month by month tenancy until formally renewed under a new AST.

Why is it important to have an AST?

The importance of having a current, legally binding and updated AST has never been more critical to landlords, highlighted by the pandemic housing legislation changes that have been implemented since 2020 and the substantial wave of rent arrears claims seen in the Courts since.

Do I need an AST for my tenants?

Landlords sometimes let their properties on a short-term basis to friends or family in an act of kindness as a short-term solution.

However, this can cause numerous problems for them down the line, as once a tenant has exclusive occupation of the property and is paying rent, then a tenancy is created.

If the landlord has not served the tenant with the required prescribed information at the outset of the tenancy, such as the necessary gas safety certificates etc, then this can cause issues in serving eviction notices and obtaining a Possession Order from Court if the matter becomes contentious at a later date.

Can I get an AST template online or from an estate agent?

Further issues are caused by a lack of an AST in relation to certainty of letting terms. For example, the AST will set out when the letting period starts and ends, what the rent is and how much deposit was taken etc.

Many ‘Google’ AST templates or even templates obtained from letting agents only cover the basics, and do not adequately protect landlords in respect of housing legislation updates, possession proceedings costs recovery, and limiting the use of the property to simply residential rather than business-like use.

It is therefore critical that no matter who you are letting to, getting a suitable and legally updated AST in place to protect the landlord’s rights at the outset of the tenancy is a must.

I have let my property to a tenant without an AST – could this be an issue?

You may find it difficult to evict the tenant or recover rent arrears if they accrue as the terms of the agreement are not apparent from supporting documentation.

You may also have more disputes with your tenants and their neighbours, as matters such as property usage, utility service payments, pets and parking are all usually covered in the AST agreement, providing clarity to the parties that simply is not there without a formal AST in place from the outset.

I gave my tenant an AST years ago - should I get this updated?

This will depend on a number of factors, but generally our advice would be yes. Housing legislation has changed drastically over the last decade, with implementation of deposit protection, the Tenant Fees Act and ‘Breathing Space’ initiatives all now well established in residential lettings.

Therefore if you feel that your current AST is outdated and not fit for purpose, or may lead to some of the issues mentioned in this Q&A, we would recommend taking advice from a Property Litigator as to getting a new AST template.

There are certain instances whereby it would be more beneficial to keep your tenant on their current periodic tenancy from a historical AST, as it can offer more flexibility in respect of notice periods and be less prescriptive regarding prescribed information if the AST pre-dates 2015, however professional legal advice should still be sought in this respect.

How can Frettens help me?

If you feel that you would benefit from a new AST and wish for us to draft one for you, please feel free to contact the Property Litigation Department here at Frettens on 01202 499255 for a free initial 30 minute telephone appointment.

We offer a fixed fee for AST drafting and provide you with an electronic copy for you to tailor for future lettings if desired.

Keep up to date with us

Will Bartley, who specialises in Property Litigation matters, authors a monthly Q&A on the website on a wide variety of Property Litigation related topics and would be happy to assist with enquiries of this nature including AST drafting and eviction related enquiries.

If you’d like to keep up to date with this monthly Q&A, please sign up to our property newsletter here.

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