Wait, so this is interesting because the specific “use case” is only mentioned in the ineffectual explanatory notes, is the actual binding effect of the section confined to these shared ownership tendencies? Or does it have any effect on more typical PRS ASTs?

@Seekinganswers If I had to guess, I'd say that subsection 5A wouldn't normally apply to a normal tenancy, as there isn't any "interest" (i.e. share in the property) for the tenant to sell and for the landlord to buy. Shared ownership schemes are different, in that the tenant owns part of the property.

Well, the thing in my mind is precisely that under LPA 1925, a tenancy (including an AST) is an interest in land. That is why it must be terminated (from the tenant’s perspective, I suppose “disposed of”) by execution of a deed.

Insofar as the explanatory notes have an effect on interpretation or discernment of parliamentary intent, then it seems more clear given the ENs what is envisioned by the section, and yet the section doesn’t actually say that itself, or restrict itself to applying to that type of “interest” in the demise so where does that leave the effective scope of it?

@Seekinganswers Interesting questions! Again, if I had to guess, I'd say that if even a regular tenant does have an "interest", either it has no monetary value, or if it does, no landlord would want to pay for it. Recall that all this subsection does is allow the landlord to include a clause in the lease, requiring the landlord to have first refusal if the tenant wants to sell their share. The landlord isn't obliged to include such a clause (it probably wouldn't make much sense for an AST, for the above reasons); and if he does include it, he can turn down the tenant's offer anyway.

Well it wouldn’t make much sense in a lease due to implied restriction on reassignment etc without consent in ha88. But I imagine so called cash for keys arrangements of “compensated surrenders” where LLs would want to “purchase” an AST’s interest in a property. Yet on what basis do you suggest that this only covers scenarios where a LL has actually included a clause in the original lease?

@Seekinganswers It specifically says so in the explanatory notes quoted above. Also ss5A refers to ss5, which talks about certain obligations on the tenant before the tenancy starts (specifically, obligations which would have the effect of ending the tenancy). A tenancy agreement would provide evidence of those obligations existing.

Just an aside, I *think * ss is conventionally used as abbreviation for sections, not subsection.

@Seekinganswers you're right! libguides.bournemouth.ac.uk/c.php?g=471702&p=3226266

Anyway, on reexamination it is curious, however my reading was really, and I think still remains, that this refers to an obligation assumed before the fixed term gets replaced by an SPT or by a new fixed term. Not before the original fixed term written agreement was signed. Particularly because it says before the tenancy was entered into, not before the tenancy’s term has commenced. Presumably the sequence would be: sign (thereby enter into) initial fixed term agreement, term of initial fixed term commences, term of initial fixed term ends, is immediately replaced by new tenancy.

Therefore, your theory that obligations assumed before the beginning of the tenancy refer to things that might appear in the lease seems misplaced. It would make sense to me if it referred to obligations assumed before the tenancy began, but not as it refers to on or before the date that the tenancy was “entered into,” which to me seems to refer to the signing of a contract, so the assumption of obligations it envisions could not possibly be things that would appear in that very same contract.

Interesting that subsection(s) are shortened with a hyphen.

I think it must refer to obligations assumed before the date of the beginning of the replacement tenancy.

@Seekinganswers I don't know for certain, but the only place where obligations are recorded is in the tenancy agreement, so what else could it refer to?

No, I think you’re off here. It could be reflected in a verbal contract, NTQ, conditional offer to surrender at a future date, etc etc etc.

Which is alluded to by the second limb of the section. But… I think you’re also off in the general frame of your thinking in that… sign initial fixed term -> during fixed term obligation assumed by serving ineffectual NTQ specifying date after end of fixed term -> replacement tenancy arises by operation of s5 or by explicit grant by LL of new fixed term -> NTQ which would come to term is void as having been rendered ineffectual by sub-s5(5a). In other words, the obligations are to have been assumed on or before the date on which the *replacement * tenancy (not the original tenancy which is…

…by far the much more nearly, of the two, to be guaranteed to have had a written contract) arose or had been granted, not the date on which the term of the original/initial/former one began.

I think you should ask what this means in a separate question. :-)

(1) "It could be reflected in a verbal contract": how would you prove that in a dispute? (2) "...NTQ, conditional offer to surrender at a future date, etc": all of which would be void under sub-s5.

@Seekinganswers In the case of shared ownership (which sub-s 5A was added to serve), there's a good reason to exclude any discussion of replacement tenancies: shared ownership tenancies are typically for 99 years or more, so the tenancy is never replaced.