New protected tenancies restricted – HA 1988 s. 34
HA 1988 s.34 restricts new protected tenancies to exceptions: pre-Act contracts, existing tenant grants, court-ordered accommodation, new town disposals.
A tenancy which is entered into on or after the commencement of this Act cannot be a protected tenancy, unless— it is entered into in pursuance of a contract made before the commencement of this Act; or it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was a protected or statutory tenant and is so granted by the person who at that time was the landlord (or one of the joint landlords) under the protected or statutory tenancy; or it is granted to a person (alone or jointly with others) in the following circumstances— prior to the grant of the tenancy, an order for possession of a dwelling-house was made against him (alone or jointly with others) on the court being satisfied as mentioned in section 98(1)(a) of, or Case 1 in Schedule 16 to, the Rent Act 1977 or Case 1 in Schedule 4 to the Rent (Agriculture) Act 1976 (suitable alternative accommodation available); and the tenancy is of the premises which constitute the suitable alternative accommodation as to which the court was so satisfied; and in the proceedings for possession the court considered that, in the circumstances, the grant of an assured tenancy would not afford the required security and, accordingly, directed that the tenancy would be a protected tenancy; or it is a tenancy under which the interest of the landlord was at the time the tenancy was granted held by the Commission for the New Towns or a development corporation, within the meaning of section 80 of the Housing Act 1985, and, before the date which has effect by virtue of paragraph (a) or paragraph (b) of subsection (4) of section 38 below, ceased to be so held by virtue of a disposal by the Commission for the New Towns made pursuant to a direction under section 37 of the New Towns Act 1981 In subsection (1)(b) above “ protected tenant ” and “ statutory tenant ” do not include— a tenant under a protected shorthold tenancy; a protected or statutory tenant of a dwelling-house which was let under a protected shorthold tenancy which ended before the commencement of this Act and in respect of which at that commencement either there has been no grant of a further tenancy or any grant of a further tenancy has been to the person who, immediately before the grant, was in possession of the dwelling-house as a protected or statutory tenant; and in this subsection “ protected shorthold tenancy ” includes a tenancy which, in proceedings for possession under Case 19 in Schedule 15 to the Rent Act 1977, is treated as a protected shorthold tenancy. In any case where— by virtue of subsections (1) and (2) above, a tenancy entered into on or after the commencement of this Act is an assured tenancy, but apart from subsection (2) above, the effect of subsection (1)(b) above would be that the tenancy would be a protected tenancy, and the landlord and the tenant under the tenancy are the same as at the coming to an end of the protected or statutory tenancy which, apart from subsection (2) above, would fall within subsection (1)(b) above, the tenancy shall be an assured shorthold tenancy (whether or not , in the case of a tenancy to which the provision applies, it fulfils the conditions in section 20(1) above) unless, before the tenancy is entered into, the landlord serves notice on the tenant that it is not to be a shorthold tenancy. A licence or tenancy which is entered into on or after the commencement of this Act cannot be a relevant licence or relevant tenancy for the purposes of the Rent (Agriculture) Act 1976 (in this subsection referred to as “ the 1976 Act ”) unless— it is entered into in pursuance of a contract made before the commencement of this Act; or it is granted to a person (alone or jointly with others) who, immediately before the licence or tenancy was granted, was a protected occupier or statutory tenant, within the meaning of the 1976 Act, and is so granted by the person who at that time was the landlord or licensor (or one of the joint landlords or licensors) under the protected occupancy or statutory tenancy in question. Except as provided in subsection (4) above, expressions used in this section have the same meaning as in the Rent Act 1977.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section stops most tenancies created after the Housing Act 1988 came into force from being protected tenancies under the Rent Act 1977. A new tenancy can only be protected if it falls into one of the specific exceptions listed: it was agreed before the Act; it is granted to someone who was already a protected or statutory tenant of the same landlord; it follows a court order for possession where the court directed that the alternative accommodation must be a protected tenancy; or it is granted by a development corporation or the Commission for New Towns before it disposes of the property.
Even within the exception for existing protected tenants, tenants under a protected shorthold tenancy are excluded – so a shorthold tenant who gets a new tenancy does not get a protected tenancy. If a tenancy would be protected under the exception but for that exclusion, and the same landlord and tenant continue, it becomes an assured shorthold tenancy unless the landlord serves notice to the contrary.
The same restrictions apply to licences and tenancies under the Rent (Agriculture) Act 1976 – new agricultural occupancies are limited to similar transitional cases.
When it applies
- A landlord grants a new tenancy to someone who was already a protected tenant of the same landlord, relying on the exception in s.34(1)(b).
- A tenant who was evicted after a possession order for suitable alternative accommodation is granted that accommodation as a protected tenancy because the court directed it under s.34(1)(c).
- A development corporation grants a tenancy shortly before it sells the property to a private landlord, and the tenancy is protected under s.34(1)(d).
- A tenant signs a new tenancy agreement after the 1988 Act start date without any of the exceptions applying – the tenancy cannot be protected.
- A protected shorthold tenant is granted a further tenancy by the same landlord; despite the existing relationship, the new tenancy is not protected because s.34(2) excludes shorthold tenants.
What this section does not say
- This section does not govern assured shorthold tenancies – those are created under s.19A and s.20 of the Housing Act 1988.
- It does not cover local authority tenancies, which are secure tenancies under the Housing Act 1985, not protected tenancies.
- It does not deal with succession to a protected tenancy – that is covered by s.39 of the Housing Act 1988.
- It does not apply to tenancies entered into before the Housing Act 1988 came into force; those may be protected under the earlier Rent Act 1977.
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This page reproduces the text of HA 1988 s. 34 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.