Schedule 1 of the Housing Act 1988 contains certain tenancies which cannot be assured or assured shorthold tenancies, for example resident landlords and tenancies where the rent payable is greater than £100,000 per annum.
A brief list of the exclusions are:
- Tenancies entered into before commencement (of the Housing Act)
- Tenancies of dwelling-houses with high rateable values and where rent payable greater than £100,000 per year (£25,000 Wales until 1 December 2011 then £100k)
- Tenancies at a low rent (in Greater London, £1,000 or less a year and, if it is elsewhere, £250 or less a year)
- Business tenancies
- Licensed premises (accommodation in same building as pubs, nightclubs etc)
- Tenancies of agricultural land
- Tenancies of agricultural holdings
- Lettings to students by universities
- Holiday lettings
- Resident landlords
- Crown tenancies
- Local authority tenancies etc.
- Transitional cases
In addition to the exclusions contained in Schedule 1, there are a couple of other tenancies which cannot be assured or assured shorthold because of the way section 1 Housing Act 1988 is worded.
- The tenancy must be to an individual, therefore a company let cannot be an assured tenancy
- The tenancy must be the tenants only or principle home, therefore if the tenant has another home that is his principle home, the tenancy cannot be assured
Virtually all the exclusions that relate to a private landlord, mean that the tenancy will be a common law tenancy. This would be the case even if the landlord had granted an assured shorthold tenancy because law overrides contract and it doesn’t matter what label you put on a tenancy [Street v. Mountford  2 W.L.R. 877].