Important note about changes to Notices Seeking Possession
Due to the Coronavirus pandemic, the government has changed the rules about how much notice a landlord must give a tenant before applying to the court for eviction. Also, the rules about how cases are dealt with by the court have been amended, and in some cases, landlords may have to provide extra information about the application for eviction.
There are also new forms which a landlord must use to give notice to an Assured (Shorthold) Tenant.
We provide advice and information to landlords about tenancy law and offences related to tenancy law.
Although we cannot represent or act on behalf of landlords in the way that a solicitor or advocate can, we do advise about the law to do with private tenancies.
We have produced detialed advice for landlords on the following private rented problems.
Types of tenancy explained for landlords
Assured Shorthold Tenancy
This is the most common type of tenancy. Most private sector tenancies created on or after 28 February 1997 are Assured Shorthold Tenancies whether they are called that in the contract or not.
One of the key features of an Assured Shorthold Tenancy is that a new tenancy automatically follows when a fixed term tenancy agreement runs out. This new tenancy is called a ‘periodic tenancy’.
As a landlord, you can only end an Assured Shorthold Tenancy by getting a Possession Order from the court.
There are two ways of getting a Possession Order; one begins by giving your tenant a ‘Section 21’ Notice and the other, by giving a ‘Section 8’ Notice Seeking Possession.’
If you take a deposit for an Assured Shorthold Tenancy, you have to ‘protect it’ in a government authorised scheme.
Assured Shorthold Tenancy (before 28 February 1997)
If the tenancy began between 15 January 1989 and 27 February 1997, the landlord had to give the tenant a document called a Notice of an Assured Shorthold Tenancy (or ‘Section 20’ Notice) if the landlord wanted the tenancy to be an Assured Shorthold.
This sort of Notice had to be given before the tenancy was entered into. Tenancies created on or after 28 February 1997 did not need one of these Notices.
Assured Tenancy (non-Shorthold)
This kind of tenancy is most likely to be created in one of two ways:
- If the tenancy was entered into between 15th January 1989 and 28th February 1997, and either: no Notice of an Assured Shorthold Tenancy was served; or the tenancy was made for a fixed term of less than 6 months.
- If the tenancy was entered into after 28th February 1997, and either: the landlord serves a notice on the tenant, saying the tenancy is not an Assured Shorthold Tenancy; or the tenancy agreement says that the tenancy is not an Assured Shorthold.
As with Assured Shorthold tenancies, once a fixed term tenancy agreement runs out, a new periodic tenancy automatically follows.
You can end non-Shorthold Assured Tenancies by serving a Section 8 Notice Seeking Possession, and then applying to the court.
However you are not able to use the Section 21 procedure to get possession.
You do not have to protect a deposit taken for a non-Shorthold Assured Tenancy.
This is a tenancy which began before 15 January 1989.
One of the key features of this kind of tenancy is that rents are controlled by a system of fair rents set by the Valuation Office Agency.
Also, you can only gain possession on the grounds allowed by the Rent Act 1977. You must obtain a Possession Order from the court.
Licences to occupy, instead of tenancies, are created in some circumstances.
This is can be when the occupier doesn’t have the right to exclude other people, including the owner; or when it is clear there wasn’t an intention to create legal relations.
Examples of licences can include where the occupier is living somewhere as a part of their job, or where a landlord regularly provides services in the room (for example cleaning or support).
Licencees generally have fewer rights than tenants.
The law will not allow a landlord to call a tenancy a licence just in order to give the occupier fewer rights.
The law to do with the difference between tenancies and landlords is complicated and if you are in doubt about this you will need to get further advice.
Occupiers with resident landlords
This covers occupiers who share living accommodation with their landlord (for example bathroom, kitchen, living room).
Where this sharing has been in place throughout the arrangement, generally you do not need a Possession Order to evict the occupier. However you would still need to serve a notice. The length of the notice depends on the nature of the arrangement.
When you are thinking of ending a tenancy, the most important point for a landlord to bear in mind is that, if you have a rent paying arrangement with someone, then, generally, you can’t evict them without a Possession Order from the Court, and then a bailiff’s warrant.
One of the main exceptions to this is if you are a resident landlord who has been sharing living accommodation with an occupier throughout their stay. However even a resident landlord must still serve the right notice, or wait for any contract to end, before the occupier has to leave.
This is so even when the end date of the tenancy agreement has been reached, or if the tenant is not paying the rent.
At the end of the tenancy agreement, a new tenancy automatically follows so long as the tenant is still living there. This is usually referred to as a 'statutory periodic’ Assured Shorthold Tenancy. The terms and conditions of this tenancy are the same as agreed in the original contract.
Ending a tenancy and getting a tenant to leave is often referred to as getting or taking ‘possession’.
The main steps to possession are:
- Serving the correct Notice.
- Applying to the Court for possession.
- The Court making a decision (usually at a hearing).
- Applying for a bailiff’s warrant.
Notice Seeking Possession (NSP or ‘Section 8’ Notice)
This notice can be used if you can prove one or more of 17 Grounds. Most of the relevant grounds are to do with things like rent arrears and damage or anti-social behaviour by the tenant.
Before you can apply to Court for possession on the 17 Grounds, you must give the tenant a Section 8 Notice or NSP. This is a special form: Assured tenancy form number 3.
This form contains a lot of legally required information and needs to be filled in correctly.
Complete the following:
- tenant's name
- address of rented property
- full text of grounds. The grounds can be found in the Housing Act 1988. The rent arrears grounds are 8,10 and 11.
- say the reason why you want to evict the tenant. For example, if it's for rent arrears, you need to state what the agreed rent is and how much rent is owed, and attach a rent account
- say what the expiry date is (usually two weeks after the tenant receives the notice)
- write your name and address and sign and date it
The minimum length of notice for Grounds 3, 4, 8, 10, 11, 12, 13, 15, and 17 is 2 weeks.
For Grounds 1, 2, 5, 6, 7, 9 and 16 the notice must give at least 2 months but these Grounds are rarely used.
For Ground 14 (nuisance by the tenant) you can apply to the Court for possession as soon as you have served the notice.
You can use any of the 17 Grounds after the fixed term tenancy contract has ended.
During a fixed term, you can use Grounds 2, 8, 10,11, 12, 13, 14, 15, or 17 as long as the tenancy agreement says that it can be ended for the reasons given in these grounds.
Assured Shorthold Tenancies
The vast majority of residential lettings are now Assured Shorthold Tenancies. All the above points in relation to Assured Tenancies (non-Shorthold), ‘Grounds,’ and Notice Seeking Possession, also apply to Assured Shorthold Tenancies. However, where the tenancy is an Assured Shorthold, you can also get possession using the ‘no fault’ or ‘automatic’ Shorthold Ground, usually referred to as ‘section 21’, which requires you to give your tenant at least two months Notice Seeking Possession.
To use ‘section 21’ you do not have to have a reason such as the tenant failing to pay rent or behaving badly. However, there are some limits on when you can gain possession using this method.
- you cannot give a section 21 Notice if the property is an HMO, or is in a selective licensing area, and should have a local authority license but you have failed to make a valid application.
- you cannot give a section 21 Notice if you have not taken the proper steps to protect any deposit the tenant has paid to you, including having given the tenant all the information you have to give about the tenancy and how the deposit is protected
- to give notice, you must use a special form produced by the government: Form 6A
- you must have given the tenant the government’s ‘How to Rent' booklet
- you must have given the tenant a copy of the latest gas safety certificate before they moved in, as required by the Gas Safety Regulations
- you must have given the tenant a copy the gas safety certificate which applies at the time you are giving notice
- you must have given the tenant an energy performance certificate where one is required (one may not be required for some shared houses)
- for tenancies which are not renewals, notice cannot be given within the first four months of the tenancy beginning
- for most tenancies, the notice will no longer be valid 6 months after the notice was given
- if the council has served the landlord an improvement notice, you will usually not be able to give a section 21 notice within 6 months of the improvement notice being served
- in some circumstances where a landlord is served an improvement notice, it may invalidate a section 21 notice which has already been given to the tenant
- if the tenancy was for a fixed term, you can only make the Court application for possession after the fixed term has ended
Assured Shorthold Tenancies beginning before 1 October 2015
The Deregulation Act 2015 made important changes to the requirements for section 21 notices, and not all the above requirements apply to tenancies beginning before that law came into force if a new tenancy agreement has not since been signed.
In particular, the section 21 requirements relating to gas safety certificates, how to rent booklets and energy performance certificates do not apply.
Applying to Court for a Possession Order - Section 21
The procedure you use depends on what sort of Notice you have given. If you are applying to Court following a section 21 Notice, then you can use the Accelerated Possession Procedure.
You do this using court form N5B
This procedure is quicker than other applications to Court in that, so long as you have followed the right procedure, there may not be a need for a Court hearing.
You can't use the Accelerated Possession Procedure if there wasn't a written agreement.
Applying to Court - Section 8
If you are applying for possession because you have given a Notice Seeking Possession (section 8), you can use court form N5 from the Her Majesty’s Courts and Tribunals Service.
Alternatively, you can use the Possession Claim On-Line service (PCOL) if you are seeking possession of the property together with any rent arrears.
PCOL allows you to access court forms online to make, issue, view and progress a possession claim electronically.
You cannot use the (PCOL) service if you are seeking possession under Section 21 or if you are using the accelerated possession procedure.
For a Court to grant possession, the judge would have to be satisfied that there was enough evidence against the tenant, and that their behaviour is serious enough, to make it reasonable for them to have to leave their home.
Getting this sort of evidence is not straight forward and the Court procedure using Section 8 is not very straight forward. You may therefore, need to get specialist legal advice before beginning any Court action using this procedure.
Once a Possession Order has been made
If the tenant does not leave the property on the date s/he is required to by the Possession Order, it is important to be aware that this does not end the tenancy.
Instead you must apply for a ‘bailiff’s warrant’. This results in the Court Bailiffs evicting the tenant and at this point the tenancy legally comes to an end.
If you make your tenant leave without following the correct procedure, or you attempt to, for example by changing the locks or by moving someone else in, then you are likely to be committing a criminal offence of unlawful eviction under the Protection from Eviction Act 1977.
We prosecute these offences. The maximum penalty is:
- an unlimited fine and/or 6 months imprisonment in the magistrates court, or
- an unlimited fine and/or 2 years imprisonment in the crown court
- if a tenant is made to leave unlawfully, they are also likely to be able to make a substantial claim for damages through the civil courts
Harassment of occupiers is also a criminal offence under the Protection from Eviction Act 1977. It is punishable as above.
For the purposes of this Act 'harassment' is doing something which you would have reasonable cause to believe would make the occupier leave or would deter them from pursuing a ‘right or remedy’, (for instance not reporting repairs us).
Doing something which is intended to make the occupier leave or intended to deter them from pursuing a ‘right or remedy’ is also an offence.
Examples of harassment
- cutting off the gas/electricity
- intimidating or abusive behaviour
- entering the premises uninvited (other than to carry out repairs)
- carrying out repairs in such a way as to cause unnecessary discomfort or inconvenience to the tenant
- calling at the property late at night
- sending disturbing or unreasonable texts
Even if you or your agent’s behaviour falls short of being a criminal offence, actions which interfere with the tenant’s right to Quiet Enjoyment (see above), may give the tenant the right to bring a claim against their landlord for damages through the civil courts.
Tenant owes rent
Dealing with rent arrears can be one of the most difficult and stressful aspects of being a landlord. There are no easy solutions but the most effective approach is to remain calm and professional and to have a strategy for escalating the steps you take.
Most experienced landlords would agree that you can reduce the chances of having a tenant who falls into arrears, if you do credit checks, ask for references or take other steps to satisfy yourself about the prospective tenant’s ability to pay.
It also helps to keep an accurate paper or electronic account of payments received and rent due, and to make sure that you can show this to the tenant to demonstrate any problems with payments.
It is usually better, for both landlord and tenant, if you raise problems with rent payments sooner rather than later. The first sensible step is to speak to them as soon as possible to remind them about any late payments and to ask if there are difficulties.
At each stage, it will be a matter of judgement as to when to escalate things, depending on what reaction you get and your assessment of the circumstances as they appear.
If the rent arrears are due to Housing Benefit complications, you should urge your tenant to contact us about their benefits as soon as possible.
It’s a good idea to send a letter to your tenant to cover the following points:
- what the arrears are (enclose a copy of the rent account)
- suggest they get advice from an advice centre or Housing Aid
- suggest they speak to the Benefits Call Centre about their Housing Benefit (if applicable)
- offer to make an arrangement with them to repay what is owed over a period of time
- there is also nothing wrong with pointing out to your tenant that unless they start repaying the arrears, they are at risk of legal proceedings to make them leave and to get the full arrears
If you arrange a repayment plan with your tenant, it may also help your case if you later make a claim for possession.
Small claims procedure
If your tenant owes less than £10,000, you can ask the County Court to make an order for the tenant to pay you, using the ‘small claims procedure’.
You should be able to follow the procedure without having to pay for a solicitor.
You could ring Sheffield County Court to ask for the correct form to use. They should also be able to provide you with guidance on filling the form out. Make a court claim for money.
You can use this procedure without getting your tenant to leave, which can sometimes make it more likely that you will get back the money you are owed.
Ultimately, you can make your tenant leave by serving a Section 21 and/or Section 8 Notice to leave, and then apply for a Possession Order from the County Court.
If your tenant’s behaviour is causing problems for neighbours or other tenants, then as the landlord of the property, there is an expectation that you will take reasonable steps to deal with these problems.
In the most extreme circumstances, we have powers to take the property over if you ignore the problems.
If those responsible for the anti-social behaviour live in a licensable House in Multiple Occupation(HMO) for which you are responsible, then the license conditions will require you to take reasonable and practical steps to prevent or minimise anti-social behaviour by the occupiers.
If you do not take the steps required, then you will be in breach of the license conditions and this can result in your license being revoked.
Where there is serious and persistent anti-social behaviour or disorder, we and South Yorkshire Police can consider applying for a Closure Order which results in the property being closed for up to 3 months. In these cases, we would also seek to recover any legal fees incurred.
There are two kinds of Closure Order, the 'Crack House' Order (Anti-Social Behaviour Act 2003 Section 2) and an Anti-Social Behaviour Closure Order (Section 11B).
Anti-social behaviour can take many forms and is often difficult to deal with. Different situations will need different solutions. We hope the information below will help by explaining some of your options.
First steps to take
First, it is sensible to find out as much as you can before approaching the tenant, for example talk to those affected by the alleged behaviour.
In some cases you will be able to deal with the situation by simply making clear to the tenant that their behaviour is causing problems. You should take a balanced, measured approach, based on the evidence available.
These issues need to be handled sensitively, especially as those affected may be worried if they are identified as the source of the complaint.
Most versions of the sorts of standard tenancy agreement that you can buy, will include a clause making clear that the tenant should not behave in such a way as causes annoyance or nuisance to others.
It is worth checking this is included before you use the agreement. If such a tenancy condition is included this can be pointed out to the tenant.
If reasoning with the tenant does not help, and there is clear evidence of the problems continuing, you can make your tenant aware that they are in danger of losing their home as a result of their behaviour, because you will then be able to apply to Court for a Possession Order.
You can also point out that if someone loses their home because of anti-social behaviour, then this makes it less likely that they would be rehoused by ourselves if they then apply as homeless.
Even at an early stage of receiving a complaint of anti-social behaviour, it is advisable to keep records of the complaints you receive and to keep any evidence you have of bad behaviour by the tenants.
This will help if you have to take the sort of legal action described below. It will also help, if you have kept clear records of having tried to speak to your tenants in a reasonable way, before taking legal action.
It is usually advisable to follow up conversations or attempts to contact the tenant, by emailing or writing as well, so that there is a clear record of your attempts to resolve things.
Options other than getting the tenant to leave
Before thinking of applying to the Court for possession, you could consider whether there are any other ways of handling the problems the tenants are causing:
Neighbour conflict or disagreement
If there is conflict or disagreement between neighbours, the mediation service Mediation Sheffield (MESH) can help neighbours work out mutually acceptable solutions.
Needs support in their accommodation
Sometimes problems happen because the occupier cannot cope in the accommodation without support. If so, it can help to put them in contact with someone who could provide housing support and help.
This sort of help for the occupier can have very positive benefits for you as a landlord. It can help the occupier with practical problems in looking after the property, paying bills and getting Benefits.
Also it can encourage a responsible approach from the occupier. Where a tenant appears to be having severe difficulties coping, perhaps because of mental health problems, or where there are concerns about the young or elderly, it might be appropriate for Social Care Services to be involved.
Social Care Services can advise further in these sorts of situations.
Where there is a specific problem for instance with noise, dogs smells or rubbish, you can contact our Environmental Services.
They can investigate and sometimes take legal action against the people causing it (see Section 15 – Useful Contacts).
Where the anti-social behaviour of a tenant is creating problems in the wider community, and you have been unable to resolve these problems yourself, there may be broader powers which can be used.
For example Anti-Social Behaviour Orders (ASBOs), Acceptable Behaviour Contracts and closure orders.
Report problems to South Yorkshire Police on telephone number 101.
You should also inform the Police if you think the tenant’s behaviour or any of their actions might amount to a criminal offence(s).
There may be some extreme cases, where the tenant is very disruptive or violent. If they might be a danger to others, you can consider asking the Court for an injunction against them.
An injunction could, for instance, stop the tenant returning to the premises for a period of time or prevent them from behaving in a dangerous or threatening way. To get an injunction you need further legal advice.
Ending the tenancy
If all else fails, you may need to consider taking action to get your tenants to leave.
You can apply to Court for possession (that is to end the tenancy) using ‘Ground 14’ if there is serious anti-social behaviour from an Assured or Assured Shorthold Tenant.
To make use of this ‘ground’ during the fixed term of the contract it must say that the tenancy can be ended for this reason.
Using ‘Ground 14’ is an additional option to the more usual and straight forward way of ending an Assured Shorthold Tenancy using the ‘automatic shorthold ground’, ‘Section 21’.
Ground 14 and Notice Seeking Possession
The first step in using ‘Ground 14’ is to give a ‘Notice Seeking Possession’. Giving this Notice might itself, help deal with the problem by making the tenant aware that their home is at risk if the behaviour continues.
Even before you serve the Notice, it may be worth sending the tenant a final warning letter.
In some cases this warning might be enough to make the tenant change their behaviour, but if not, giving a Notice Seeking Possession provides you with another step by which you can escalate your response and put things on a more formal footing.
Download a ‘Notice Seeking Possession’ document.
When you are filling in a Notice Seeking Possession, it is likely that paragraphs 3 and 4 will be the least straight forward.
In paragraph 3 you would need to state in full any of the ‘Grounds’ which apply. You can find these Grounds at the end of Section 13.
In the case of anti-social behaviour, Grounds 12 and 14 are the most likely to apply but if you think that more Grounds apply, you should state them all.
It is likely that you will need to copy or cut and paste the text of these Grounds onto a separate sheet or appendix.
In paragraph 4, you need to provide details of the tenant behaviour that is causing the problem.
Again you will probably need a separate sheet. You should describe the behaviour, its effect on others and the approximate dates or time period when the behaviour has taken place.
At this stage, you would not need to provide any witness statements or names of the people who have complained.
Apply to Court
If you do need to take the next step of applying to court to get the tenant to leave, the law recognises that these claims for possession need to be considered urgently and you can to apply to Court for possession as soon as you have served the correct Notice.
However, for a Court to grant possession, the judge would have to be satisfied that there was enough evidence against the tenant, and that their behaviour is serious enough to make it reasonable for them to have to leave their home.
Getting this sort of evidence is not straight forward and you may need to get specialist legal advice before beginning any Court action.
Remember that if the tenancy contract is within two months of ending, or is running on as a periodic tenancy, it might be quicker to use ‘Section 21’ to end the tenancy.
However, there is nothing to stop you giving both a Notice Seeking Possession and a Section 21 Notice as well.
Entering a tenant's home
All tenants are entitled to ‘Quiet Enjoyment’ of their accommodation. This means that you, as a landlord, must not interfere with their occupation of the premises and that the tenants are able to live in their home in peace, comfort and privacy.
Rights of access
Agreeing a tenancy means that you must give up many of the rights you have to occupy and enter the premises. A tenant is regarded as having ‘exclusive occupation’ of the house or flat which means that generally, the tenant has control over what happens on the premises. The main exception is that the tenant has to let you have access to carry out any repairs that you have a legal obligation to carry out. You also have a right of access to inspect for disrepair so long as you have given the tenant 24 hours’ notice in writing. However, it is always advisable that you make every reasonable effort to come to a mutual agreement with your tenant about access for repairs and inspection.
If you rent out a shared house where the tenants have separate tenancy agreements, you retain control of the shared parts but the tenants have the right to use them. This means that you can enter the shared parts without the tenants’ permission. However you should still respect the tenants’ right to privacy and comfort. The law to do with access to individual tenants’ bedrooms in a shared house is the same as for a single letting of the whole house.
It is important to remember that access to do repairs, or to inspect, is limited to being for that purpose, so, unless the tenant agrees to for example talk about other issues, you would need to deal with those issues separately.
The tenancy agreement might also say the tenant has to allow access to the landlord e.g. on giving notice and at reasonable times, for the purpose of showing prospective new tenants round in the last month of the tenancy. If the tenant does not allow this, then the landlord might be able to claim damages for any losses incurred as a result of not being able to show prospective tenants round.
Tenant has left
Sometimes you may suspect your tenant has left your property without telling you, a situation sometimes referred to as ‘abandonment’. You may not have received rent for a while, you may not have heard from them, and some or all of their possessions may have been removed. These situations can be difficult for a landlord if you don’t have clear evidence that the tenants have ‘abandoned’ the property.
If you suspect your tenant has abandoned the property it might be useful to visit to see if there are any belongings there, and also talk to neighbours to see if they have seen the tenant, or maybe if they have seen the tenant moving out. Also, make sure you make all attempts to contact the tenant and keep copies of any letters, texts, and record the attempts you have made to ring them.
Even if you still think your tenant has left without telling you, this does not mean that you can re-enter and change the locks. This is because even if you think the tenant has left, it does not mean that the tenancy is over, they may just have been away for a period of time. An example of this is when a tenant has gone to prison or is in hospital.
If you change the locks and re-let and the tenant returns, you are making yourself vulnerable to prosecution for illegal eviction and there is the risk of your tenant suing you for damages which can run into many of thousands of pounds. There is a defence to a criminal charge if you thought, and had reasonable cause to believe, that the tenant had gone. Bear in mind this defence would not apply if you were sued in the civil courts by the tenant.
Abandonment notices are notices landlords sometimes put on the door of a property they believe to have been abandoned by the tenant. These kinds of notices usually say something like ‘I will be changing the locks and repossessing the property 14 days from the date of this notice’. These notices do not have any legal standing and should not be relied on. It is not advisable to repossess your property without a Possession Order or without very strong evidence of surrender (see below).
One way that a tenancy can end without the landlord following the usual procedure of getting a Possession Order from the Court, is by what the law terms ‘surrender'. However the case law about surrender says pretty clearly that, for this to have happened in law, there has to be an ‘unequivocal act’ of surrender by the tenant, for example if the tenant says ‘I’m leaving’, gives up the keys, and moves out their possessions. In these circumstances you are entitled to accept this as a surrender of the tenancy at which point the tenancy ends. However unless things are put in writing or you have other very clear evidence, there is still potential for a dispute about what has actually happened or what has been said.
Unless you are absolutely sure the tenant has surrendered the property, the safest course of action is always to get a Possession Order from the County Court, which will remove the risk of being prosecuted for illegal eviction and being sued by the tenant.
‘Only or Principal Home’
Where a tenancy has ceased to be the tenant’s ‘only or principal home’, you may be able to end the tenancy without getting a Court Possession Order, so long as you follow the correct procedure. However, establishing evidence that premises have ceased to be the occupier’s only or principal home can be extremely difficult. Also, if a tenant has, for example, gone on holiday, gone travelling for a number of months, or they are staying with relatives with the intention of returning, the tenancy may very well continue to provide the tenant’s only or principal home, despite a lengthy absence.
The fact that a tenant is not staying at the property is not conclusive evidence that it is not their only or main home. The only real solid, evidence, is that their home is somewhere else, for example they have a tenancy elsewhere or they own another house where they are living. If the tenant has got another tenancy and you know they have moved in there, then the original tenancy is very unlikely to still be their only or principal home. However, if they are still in the process of moving to the new tenancy, the original tenancy may still be the only or principal home until they have completed the move.
If the tenant is claiming benefits from another address or has taken steps to end their liability for Council Tax or fuel bills, this can also be good evidence that the original tenancy is no longer the tenant’s only or principle home, though this kind of information can be difficult to get hold of.
Where a tenant has moved out large items of their furniture, this can also be helpful to you in concluding that the property is no longer their only or principle home, but where you rely on this sort of evidence, you probably still have to bear in mind that a degree of risk is involved, and you would need to weigh up, in each case, whether you want to risk taking possession yourself or whether it would be better to apply for a Possession Order instead.
Procedure for ending tenancies
Even where the property is no longer the tenant’s only or main home, there is still a procedure to go through to end the remaining contractual tenancy.
Fixed –term tenancies
In the case of a fixed term tenancy, that is where the contract is still in place, which is no longer the tenant’s ‘only or principal home,’ then the tenancy will end automatically at the end of the contract. You might be able to end it earlier if the tenancy agreement has a forfeiture, re-entry or break clause allowing the contract to be ended in certain circumstances, for example rent arrears.
Where the tenancy is periodic and no longer the tenant’s ‘only or principal home’, then in addition to using forfeiture, you can end the tenancy by giving an ‘old-fashioned’ Notice to Quit. The tenancy would then end when the Notice to Quit runs out.
Service of the Notice to Quit can be a problem, even if you are sure the tenancy is no longer the tenant’s only or principal home.
Protect your tenant's deposit
A deposit is a sum of money held as security against any damage, unpaid bills or rent arrears that the tenant may be liable for.
All deposits taken by landlords for Assured Shorthold tenancies must be protected in one of 5 Government authorised tenancy deposit schemes.
There are 2 stages in dealing with deposits correctly:
- protecting the deposit in a scheme
- serving the ‘prescribed information’
They both need to be done within 30 days of receiving the deposit.
Protect a deposit
Deposits need to be lodged in a Government authorised scheme.
There are 5 schemes – 1 custodial and 4 insurance, and they are administered by 3 different companies.
The custodial scheme is where the scheme holds the deposit. It is free to join and is open to everyone. With the insurance schemes, you keep the deposit and pay an insurance premium to the scheme.
Some of the insurance schemes have membership stipulations. You would need to check this directly with the scheme.
The schemes are:
Deposit Protection Service for custodial and insurance
My Deposits for insurance
Tenancy Deposit Scheme (TDS) for insurance, it also includes:
DepositGuard for insurance run by Residential Landlords Association
The law requires you to serve the prescribed information on the tenant. This must be done or you are at risk of the tenant claiming compensation, and you may not be able to evict the tenant using the 'Section 21’ procedure. The prescribed information requirements are listed in the table below.
However, most of the schemes have templates and documents you can print out. More details are on the scheme websites (see links above). Some of the prescribed information can be incorporated into tenancy agreements, for example by the TDS scheme, which provides standard clauses you can insert.
If you are using the DPS custodial scheme, the Deposit Protection Service has more information on serving the prescribed information for deposits in the custodial scheme.
Some of the prescribed information may be provided by the deposit protection scheme, but it is crucial to check that you have given the tenant all the information you have to using the check list below.
You must abide by the rules of scheme. See the scheme website for more information.
The prescribed information is not the same as the scheme certificate. It has to come from you, the landlord, or your agent.
Checklist of information to give to the tenant(s)
The landlord has to give the information in Section 1 in the certificate, AND
- sign to say that it is correct to the best of his knowledge and belief and
- give the tenant the opportunity to sign the information to confirm that the information is accurate to the best of the tenant’s knowledge and belief.
Section 1: Information about your tenancy
- The amount of the deposit paid and the address of the property to which it relates .
- Landlords' name and address, telephone number and email.
- Tenant(s) names, address(es) and contact details, including such details that should be sued to contact the tenant(s) at the end of the tenancy.
- The name, address and contact details of any 'relevant person' (any third party who has paid the deposit to the landlord on behalf of the tenant).
- The circumstances when the landlord will be entitled to retain some or all of the deposit paid, by reference to the terms of the tenancy.
Section 2: General information about deposit protection
- Name, address, telephone number and email address of the scheme that is safeguarding the deposit.
- An information leaflet explaining the law to do with tenancy deposit protection. This leaflet will be provided to landlords by the scheme administrators.
- The procedures which explain how the deposit may be repaid at the end of the tenancy.
- The procedures that apply when either the landlord or tenant is not contactable at the end of the tenancy.
- The procedures that apply where the landlord or tenant disputes the amount of the deposit to be repaid.
- information about how you can resolve a dispute about the deposit without going to court (often referred to as Alternative Dispute Resolution).
Landlords who do not comply with the requirements of this scheme within 30 days will be liable to pay a fine payable to the tenant, of up to three times the amount of the deposit.
If you have failed to comply within the 30 days, it is still very worthwhile complying as soon as possible, as this is likely to affect how much you would be fined if the tenant takes legal action against you.
If you have not protected the deposit within 30 days, you are also barred from using the Section 21 Notice route for possession, until you have returned the deposit in full to the tenant, less any deductions to which the tenant agrees. If the tenant does agree to deductions, it is best to get this in writing.
You must do this before you give the Section 21 Notice.
If you have protected the deposit but have not fully complied with the prescribed information requirements, to be able to use the Section 21 route you must serve the correct prescribed information on the tenant and then serve a Section 21 Notice.
Superstrike versus Rodrigues is a Court of Appeal case from 2013. In this particular case, the tenancy had originally started before the tenancy deposit regulations came into force in 2007.
After the regulations came into force, a periodic tenancy automatically started when the contract ended, but still the deposit was not protected.
The Court of Appeal ruled that when the new periodic tenancy started, the effect of this was that the landlord was returning the deposit attached to the tenancy in the contract and receiving it again for the periodic tenancy, even though nothing physically happened to the money.
Because the deposit was in effect paid again, and the regulations were then in force, the deposit needed to be protected.
This decision has implications for many tenancies, and so the tenancy deposit schemes have jointly written some guidance for landlords called Guidance on the implications of the Court of Appeal Judgement.
As a result of this case, most of the schemes are requiring landlords to get in touch when a tenancy contract ends.
It is important that you follow the guidance and instructions issued by which ever scheme you are using, otherwise you may find yourself subject to the penalties above.
Selling a rented house
Because you, as a landlord, own the bricks-and-mortar of your rented house and the land underneath the house, you are entitled to sell it. However, this does not necessarily affect the tenant.
Selling the house does not in itself help you get the house back, but you are entitled to use the usual steps of proper Notice and applying to Court to get a tenant to leave.
It may be more straight forward to sell the house with ‘vacant possession’, that is with the tenant gone, unless it is likely that the buyer is also likely to want to rent the property out.
You don’t have to tell the tenant about the sale before it goes through. Sometimes tenants don’t know the property has been sold until afterwards. This is legal because it doesn’t affect the tenant’s rights.
Generally, a tenant, has the right to keep anyone out of the home (including the landlord), unless the tenant agrees to the person coming in. You don’t normally have a right to come in to show buyers around.
However, a tenancy agreement may allow for prospective purchasers to be shown round. Agreements should say that tenants should be given notice of visits, that they should be at reasonable times or by agreement and visits should not unduly inconvenience the tenant. If the tenancy agreement does not have these kinds of restrictions, then the clause is likely to be deemed ‘unfair’ and therefore won’t be enforceable.
It is strongly advised that if you have sold the house to another landlord, you write to the tenant confirming when the sale took place and providing the details of the new landlord. This is because, although it is not an offence to fail to tell the tenant, the tenant is entitled to hold you responsible for anything which the new landlord does wrong, or for anything that the landlord fails to do which they should do. Once you write to the tenant with the details required, you are no longer liable.