Tenancy Agreement - Deposit Protection Service - Custodial Scheme
PDF - AGREE23 Tenancy Agreement - Deposit Protection Service - Custodial Sche
RECOMMENDED FOR USE BY LETTING AGENTS. This form is to be used to create an assured shorthold tenancy where the intention is to use the Deposit Protection Service. This is a government authorised custodial tenancy deposit protection scheme designed to enable landlords and letting agents to take and hold a deposit for the duration of the tenancy.
1. Agreement 23 is produced for use where the landlord wishes to let property and to create a particular form of tenancy called an assured shorthold tenancy (“AST”), where the intention is to use the Deposit Protection Service custodial scheme, to which special rules for recovering possession apply. Those rules are set out in the Housing Act 1988 as amended by the Housing Act 1996. The Tenancy Deposit Scheme affects all assured shorthold tenancies (AST) which started on or after 6 April 2007.
2. Since 28th February 1997 most lettings of residential property to an individual have created an AST if the property is let as a separate dwelling. There are a few exceptional cases set out in Schedule 2A to the Housing Act 1988 in which an AST will not be created. These include cases in which:
a. the intended tenant already has statutory protection for his or her occupation of the property;
b. the intended tenant has previously been in occupation of the property under an assured tenancy which was not an AST; or
c. the agricultural worker condition set out in the Act is fulfilled. If you think any of these circumstances may apply, you should not use Agreement 23 without taking legal advice.
3. If you do use Agreement 23, you will grant the tenant the right to occupy the property for a stated period. Such a tenancy is called a fixed term assured shorthold tenancy. There is no minimum length for an AST, but it is common for the fixed period to be at least six months. Even if you state a shorter period, when court proceedings are based on the section 21 notice, the court cannot order the tenant to give up possession earlier than six months from the beginning of the tenancy (or the beginning of the original tenancy, if the AST came into being on the coming to an end of an earlier AST).
4. If you want the tenant to leave at the end of the period stated in the tenancy agreement, you should serve form Housing Act 21 (HA21) on the tenant at least two months before the period expires. A notice in form HA21 may also be given at any time up to the last day of the fixed period, but you must still give the tenant two months to leave the property.
5. If you do not serve a form HA21 notice on the tenant by the end of the last day of the fixed period, the tenancy you have created will continue after that period comes to an end. The tenancy will change from a fixed term AST to a periodic AST. The new period will usually be the period by reference to which rent is paid, so that if rent is paid monthly it will be a monthly periodic AST. The tenancy will continue from period to period until it is brought to an end. The tenant may bring it to an end by giving notice to quit, which must usually be at least as long as a period of the tenancy and must expire at the end of such a period. (The exception to the rule that the notice must be as long as a period of the tenancy is in the case when the tenancy is a yearly tenancy. The notice then need not be more than six months, but it must still expire at the end of a period of the tenancy. It is very rare for an AST to be a yearly tenancy.) You may bring it to an end by serving notice in form Housing Act 21A (HA21A), which must be served at least two months before the date it is to take effect and must expire at the end of a period of the tenancy.
By way of example, suppose you grant a tenancy in the form of Agreement 23 for six months starting on 1st March and the rent is paid monthly, but you do not serve a form HA21 notice before 1st September. In the middle of November you decide you want to recover the property. The earliest you can do so is at the end of January in the following year, and to do that you must serve a form HA21A notice on the tenant by the end of November. If the tenant were to decide in November that he or she wanted to leave, the earliest at which the tenancy could end would be the end of December and notice to quit would have to be given by the end of November to achieve that.
6. If you want to end an AST before the end of the fixed term, or before the end of a period of the tenancy, you will need to get a possession order from the court. You can only do so on a ground stated in the tenancy agreement which is also a ground which Schedule 2 of the Housing Act 1988 allows you to rely on. Agreement 23 allows you to rely on grounds based on non-payment of rent or breach of the terms of the agreement, but you will have to make sure that the words of Schedule 2 are satisfied. If you think that there is such a ground, you must serve a notice in form Housing Act 32 (HA32) on the tenant. HA32 is the form of notice prescribed under section 8 of the Housing Act 1988 and tells you which grounds you can rely on if the fixed term has not yet expired. (Although you may be able to rely on additional grounds if the tenancy has become periodic, if you do so you will not be able to get possession more quickly than by serving notice in form HA21A.) HA32 requires you to set out the statutory words of the ground (or grounds) you rely on, as well as stating which it is (or they are).
7. If there is more than one landlord, forms HA21, HA21A and HA32 do not have to be signed by each of them, but the person who signs should make sure he or she has the agreement of the other landlord or landlords to giving the notice.
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