Transfer of tenancies from public to private HA 1988 s.38
Tenancies entered into before HA 1988 lose protected/secure status when transferred from public to private, except for disposals to registered social landlords.
The provisions of subsection (3) below apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this Act if,— at that commencement or, if it is later, at the time it is entered into, the interest of the landlord is held by a public body (within the meaning of subsection (5) below); and at some time after that commencement, the interest of the landlord ceases to be so held. The provisions of subsection (3) below also apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this Act if,— at the commencement of this Act or, if it is later, at the time it is entered into, it is a housing association tenancy; and at some time after that commencement, it ceases to be such a tenancy. Subject to subsections (4) (4ZA), (4A), (4BA) and (4B), below on and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above— the tenancy shall not be capable of being a protected tenancy, a protected occupancy or a housing association tenancy; the tenancy shall not be capable of being a secure tenancy unless (and only at a time when) the interest of the landlord under the tenancy is (or is again) held by a public body; and paragraph 1 of Schedule 1 to this Act shall not apply in relation to it, and the question whether at any time thereafter it becomes (or remains) an assured tenancy shall be determined accordingly. In relation to a tenancy under which, at the commencement of this Act or, if it is later, at the time the tenancy is entered into, the interest of the landlord is held by the Commission for the New Towns or a development corporation, within the meaning of section 80 of the Housing Act 1985 and which subsequently ceases 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 , subsections (1) and (3) above shall have effect as if any reference in subsection (1) above to the commencement of this Act were a reference to— the date on which expires the period of two years beginning on the day this Act is passed; or if the Secretary of State by order made by statutory instrument within that period so provides, such other date (whether earlier or later) as may be specified by the order for the purposes of this subsection. In relation to any time on or after the coming into force of this subsection, subsection (4) applies as if— the references to the Commission for the New Towns were references to the new towns residuary body; in the case of a disposal by the English new towns residuary body, the reference to section 37 of the New Towns Act 1981 were a reference to section 47 of the Housing and Regeneration Act 2008; and in the case of a disposal by the Welsh new towns residuary body, the words “made pursuant to a direction under section 37 of the New Towns Act 1981” were omitted. Where, by virtue of a disposal falling within subsection (4) above and made before the date which has effect by virtue of paragraph (a) or paragraph (b) of that subsection, the interest of the landlord under a tenancy passes to a private registered provider of social housing or a registered social landlord (within the meaning of the Housing Act 1985 (see section 5(4) and (5) of that Act , then, notwithstanding anything in subsection (3) above, so long as the tenancy continues to be held by a body which would have been specified in subsection (1) of section 80 of the Housing Act 1985 if the repeal of provisions of that section effected by this Act had not been made, the tenancy shall continue to be a secure tenancy or a secure contract and to be capable of being a housing association tenancy. Where, by virtue of a disposal by the Secretary of State made in the exercise by him of functions under Part III of the Housing Associations Act 1985, the interest of the landlord under a secure tenancy or a secure contract passes to a registered social landlord (within the meaning of the Housing Act 1985) then, notwithstanding anything in subsection (3) above, so long as the tenancy continues to be held by a body which would have been specified in subsection (1) of section 80 of the Housing Act 1985 if the repeal of provisions of that section effected by this Act had not been made, the tenancy shall continue to be a secure tenancy or secure contract and to be capable of being a housing association tenancy. The references in subsections (4A) and (4B) to a body which would have been specified in subsection (1) of section 80 of the Housing Act 1985 if the repeal of provisions of that section effected by this Act had not been made includes a reference to the new towns residuary body. For the purposes of this section, the interest of a landlord under a tenancy is held by a public body at a time when— it belongs to a local authority, a development corporation or an urban development corporation, all within the meaning of section 80 of the Housing Act 1985 or to the English new towns residuary body ; or it belongs to a Mayoral development corporation; or it belongs to a housing action trust established under Part III of this Act; or . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . it belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department. In this section “ new towns residuary body ” means— in relation to times before the coming into force of this subsection, the Commission for the New Towns; and in relation to other times— in relation to England, the Homes and Communities Agency so far as exercising functions in relation to anything transferred (or to be transferred) to it as mentioned in section 52(1)(a) to (d) of the Housing and Regeneration Act 2008 or the Greater London Authority so far as exercising its new towns and urban development functions (and any reference to the English new towns residuary body shall be construed accordingly); and in relation to Wales, the Welsh Ministers so far as exercising functions in relation to anything transferred (or to be transferred) to them as mentioned in section 36(1)(a)(i) to (iii) of the New Towns Act 1981 (and any reference to the Welsh new towns residuary body shall be construed accordingly). In this section— “ housing association tenancy ” means a tenancy to which Part VI of the Rent Act 1977 applies; “ protected tenancy ” has the same meaning as in that Act; and “ protected occupancy ” has the same meaning as in the Rent (Agriculture) Act 1976.
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 applies to tenancies that existed before the Housing Act 1988 came into force (or were agreed before that date) and were originally held by a public body (such as a local authority, development corporation, or the Crown) or were housing association tenancies. If the landlord’s interest later passes to a private sector entity, the tenancy changes status.
After the transfer, the tenancy can no longer be a protected tenancy, protected occupancy, or housing association tenancy. It also cannot be a secure tenancy unless the landlord’s interest later becomes public again. Instead, it becomes an assured tenancy under the Housing Act 1988, unless an exception applies.
Exceptions include disposals to a new towns residuary body (like the Homes and Communities Agency in England or the Welsh Ministers in Wales) or to a registered social landlord, where the tenancy may continue as a secure tenancy. For disposals by the Commission for the New Towns, there is a two-year transitional period.
When it applies
- A council tenant whose housing estate is sold to a private investment company.
- A tenant of a housing association that deregisters and becomes a private landlord.
- A tenant of a new town development corporation whose property is sold to a private developer.
- A tenant whose secure tenancy with a local authority is transferred to a private individual landlord.
What this section does not say
- Tenancies created after the Housing Act 1988 came into force (these are governed by other provisions).
- Tenancies where the landlord has always been a private individual (never in the public sector).
- The right to buy or other tenant purchase options.
- The amount of rent that can be charged after the transfer.
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This page reproduces the text of HA 1988 s. 38 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.