Housing Act 1988

38 Transfer of existing tenancies from public to private sector. E+W

(1) 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,—

(a) 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

(b) at some time after that commencement, the interest of the landlord ceases to be so held.

(2) 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,—

(a) 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

(b) at some time after that commencement, it ceases to be such a tenancy.

(3) [F1 Subject to subsections (4) and (4A) below] on and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above—

(a) the tenancy shall not be capable of being a protected tenancy, a protected occupancy or a housing association tenancy;

(b) 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

(c) 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.

(4) 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 a new town corporation, within the meaning of section 80 of the M1 Housing Act 1985 [F2 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—

(a) the date on which expires the period of two years beginning on the day this Act is passed; or

(b) 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.

[F3 (4A) 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 [F4 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 and to be capable of being a housing association tenancy.]

(5) For the purposes of this section, the interest of a landlord under a tenancy is held by a public body at a time when—

(a) it belongs to a local authority, a new town corporation or an urban development corporation, all within the meaning of section 80 of the Housing Act 1985; or

(b) it belongs to a housing action trust established under Part III of this Act; or

F5 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) 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.

(6) In this section—

(a) “housing association tenancy” means a tenancy to which Part VI of the M2 Rent Act 1977 applies;

(b) “protected tenancy” has the same meaning as in that Act; and

(c) “protected occupancy” has the same meaning as in the M3 Rent (Agriculture) Act 1976.

Textual Amendments

F1 Words inserted by Local Government and Housing Act 1989 (c. 42, SIF 75:1), s. 194, Sch. 11 para. 106(1)

F2 Words inserted by Local Government and Housing Act 1989 (c. 42, SIF 75:1), s. 194, Sch. 11 para. 106(2)

F3 S. 38(4A) inserted by Local Government and Housing Act 1989 (c. 42, SIF 75:1), s. 194, Sch. 11 para. 106(3)

F4 Words in s. 38(4A) substituted (1.10.1996) by S.I. 1996/2325, art. 5(1), Sch. 2 para. 18(3)

F5 S. 38(5)(c) repealed (1.10.1998) by 1998 c. 38, s. 152, Sch. 18 Pt. IV (with ss. 137(1), 139(2), 141(1), 143(2)); S.I. 1998/2244, art. 4

Marginal Citations

M1 1985 c. 68.

M2 1977 c. 42.

M3 1976 c. 80.