Flexible tenancy renewal

How can landlords deal with the inflexibilities of the flexible tenancy scheme? Jon Holbrook explains.

In the dictionary, 'flexible' means 'capable of being changed'. But if you think this an apt description of the flexible tenancy scheme then read on. For the inflexible bottom line is that at the end of a flexible tenancy the default position is that the tenant becomes a periodic secure tenant (HA 1985, s86), with a status incapable of being changed (so long as the landlord and tenant conditions continue to be satisfied).

Now, if this is what the landlord intended then fine. But the flexible tenancy scheme poses a trap for the unwary Council landlord that may intend to grant another flexible tenancy but finds it has been lured into being saddled with a secure periodic tenant. Two scenarios arise.

First, the landlord wants to grant the flexible tenant a fresh flexible tenancy of the same property. The tenant expresses his delight. The landlord and tenant sit tight until just before or even after the flexible tenancy ends whereupon the tenant announces he has changed his mind and refuses the offer of a new flexible tenancy. At this stage, there is nothing the landlord can do. It is too late to serve the notice that is a precondition for invoking the mandatory right to possession, which has now disappeared for good.

The second scenario is where the landlord wants to grant the flexible tenant a fresh flexible tenancy of a different property, say a smaller one.

The tenant agrees and even signs a fresh tenancy for the new property. So the landlord and tenant sit tight until just before or even after the flexible tenancy ends whereupon ... yep, you've guessed it, the tenant announces that he has changed his mind and refuses to move to the new property. As with the first scenario the landlord is now saddled with a secure periodic tenant.

These two nightmare scenarios can be avoided by following a few rules. With the first scenario, where the landlord wants the tenant to stay put but with a new flexible tenancy:

1. Offer the flexible tenant a new flexible tenancy at least 4 weeks (3 months would be better) before the end of the current fixed term and ask him to accept within 14 days, at which point the new flexible tenancy will begin.
2. To induce him to accept the offer state that the new flexible tenancy will end on the 5th anniversary of when the current fixed term ends. So, if his current 5-year fixed term ends on 30 November 2019 his new fixed term will end on 30 November 2024, even though he accepts the offer on 9 November 2019. In other words, in this example, his new flexible tenancy will last for 5 years and 3 weeks.
3. If he doesn't accept the offer within 14 days serve a 2-month notice requiring possession under s107D(4). There is no date that is too early for this notice but it cannot be served once the flexible tenancy has ended (s103D(5)).
4. If he still refuses to accept the offer issue possession proceedings under s107D which establishes a mandatory right to possession.

With the second scenario, where the landlord wants the tenant to move to different (smaller) accommodation with a new flexible tenancy the above four rules should also be followed but with one important addition. A mere acceptance of the offer of a new flexible tenancy by signing the new tenancy is not enough, he must actually move.

This move must be sufficiently before the current tenancy expires to enable the landlord to serve a 2-month notice requiring possession before the current tenancy expires. Given that the tenant will actually need to physically move to a new home in this scenario the likelihood is that the whole process should be started at least 8 weeks before the current tenancy ends.

By following these rules the landlord can avoid the inflexibilities of the flexible tenancy scheme.

Jon Holbrook is a barrister at Cornerstone Barristers.

Jon will be running a workshop on the flexible tenancy mandatory right to possession at the Cornerstone Housing Day on 2 October.