Category: Government Guides For Landlords

How To Legally Evict Your Tenant (GUIDE)

How To Legally Evict Your Tenant (GUIDE)

As of 06th November 2020 There Is No Ban On Evictions Of Tenants Although Bailiffs Have Agreed On The Request From The Justice Secretary To Suspend Action Until 2nd December – Which Has Been Agreed By Both Representing Bodies. Eviction Procedures Will Take Some Weeks To Get Through To The Court Stage (At The Least!) New Eviction Procedures Are Still Current And Viable For Landlords With Tenants In Rent Arrears And All Attempts To Fairly Resolve By Negotiation Of Payments Terms Has Been Exhausted (Dealing With Rent Arrears Guide To Follow Shortly – 07th Nov 20)

  • Section 21 or Section 8 notice
  • Serve a section 21 notice of possession
  • Serve a Section 8 eviction notice
  • Make a possession order
  • Private Residential Tenancy in Scotland

The two types of assured shorthold tenancies

The following advice only applies to shorthold tenancies. The two types of assured shorthold tenancies are:

  • ‘periodic’ tenancies – these run week by week or month by month with no fixed end date.  They can also arise following the expiry of the fixed term tenancy if it is not renewed for another fixed term.
  • fixed-term tenancies – these run for a set amount of time.

Should I use a professional notice server?

Sometimes a tenant will not answer the door, so can’t have notice served on them. The way to deal with this is to take a witness and put the notice through the letterbox before 5pm. It is then deemed to have been served on the following day.

If this is inconvenient or it is difficult for you to visit the property personally or if you are worried about a confrontation with a tenant, use a professional process server.

Section 21 or Section 8 notice?

If you’re looking to notify your tenant that you’d like them to leave your property, it will be necessary to serve either a Section 21 or Section 8 notice under the Housing Act 1988.

  • A Section 21 notice of possession is served to give ‘notice of possession’ to the tenant.  This means you can take back possession of your property at the end of a fixed-term tenancy agreement, or trigger an agreed break clause. Importantly, you don’t have to provide any reason to claim possession when you serve a valid Section 21 notice.
  • A Section 8 eviction notice is served when you have grounds for eviction.  For example, the tenant has not paid the rent, damaged the property or is causing a nuisance. In such cases you can terminate the tenancy during its fixed term if the tenant has breached the tenancy agreement. But your tenant may dispute it, and it could go to court where you’ll need to evidence the reason for the eviction.

Even if you have good grounds for eviction, it might be more effective to serve a section 21 notice. 

For example, if the fixed term tenancy is coming to an end or the tenancy agreement includes a break clause which can be triggered to bring the tenancy to an early end.

You can, however, serve both a Section 21 and a Section 8 notice at the same time, and issue court proceedings based on one or both notices.

The notices are totally independent and served for distinct reasons, but produce the same outcome – you get your property back.

Tenancy Deposit Schemes (‘TDS’)

If you or your letting agent don’t protect a tenant’s deposit, it can can prevent you from using a section 21 notice to recover possession of your property.  

The tenant could also raise a claim against you for the return of the deposit and a penalty of as much as three times its original value. Read more about deposit protection schemes.

Serve a section 21 notice of possession

A Section 21 notice isn’t technically an eviction notice, but a notice to inform the tenant that you, the landlord, wish to recover possession of the property once they’ve left.

The first step is to give the tenant no less than two months’ notice that you need them to vacate the premises at the end of the tenancy.

If a fixed term of the tenancy has come to an end or there is a break clause that can be triggered, you can serve a Section 21 notice of possession.  

You can serve it even if the tenant hasn’t done anything wrong and you don’t have to provide a reason for recovering vacant possession of the property.

But, a Section 21 notice must be served correctly if you want to be able to enforce it in court.

Serving a Section 21 notice

Here are some dos and don’ts for serving a Section 21 notice:

  • Do give the tenant at least two months’ notice using the prescribed form of section 21 notice
  • Do serve the right amount of notice in writing, being careful to specify the required date of possession
  • Do try to be accommodating and reasonable, especially if you are trying to end a tenancy with tenants that have always been good to you and might not want to leave
  • Don’t try and serve notice to expire earlier than the last day of the fixed term, unless the tenancy agreement makes provision for this
  • Don’t underestimate the importance of getting the two months’ notice and date to vacate correct, as it’s unlikely you’ll succeed in possession if this is wrong
  • Don’t respond in a way that could be regarded as harassing or anti-social if a tenant becomes difficult or refuses to leave, as this could result in a tenant claiming harassment damages in court
  • Don’t forget a landlord is entitled to possession by default if a valid Section 21 notice is properly served

The Deregulation Act 2015 introduced changes to the way in which tenancies can be brought to an end using the Section 21 procedure.

Originally it only applied to tenancies that were agreed on or after 1 October 2015. But, from 1 October 2018 it applies to all tenancies – regardless of when it was agreed.  

The most important rules are:

  • A Section 21 notice can’t be served during the first four months of the tenancy  But, if the tenancy has been renewed following the end of a fixed term, you can serve a Section 21 notice at any point during the renewed tenancy.
  • The Section 21 notice will only be valid for six months from the date it was issued  If possession proceedings are not issued during the six month period, another notice will have to be served.
  • Complaints about the property  If your tenant makes a legitimate complaint about the condition of your property and you fail to deal with it, the tenant may then refer the matter to the local housing authority. A section 21 notice issued after the initial complaint will be invalid once the local housing authority notice is served.
  • Use the right form  You must use form 6A to make a section 21 notice. You can use our template letter to give a tenant notice of possession under Section 21, alongside the 6A form.

The tenant must also be given the following information when they start renting for a Section 21 to be valid:

  • A Gas Safety Certificate
  • An Energy Performance Certificate (EPC)
  • The ‘How to Rent‘ guide, this guide must be given to a tenant at the start of any new tenancy.  

3Serve a Section 8 eviction notice (Document Coming Soon)

If you have grounds to evict a tenant, you can start the eviction process by serving a Section 8 notice seeking possession.  

The grounds for serving a Section 8 eviction order are set out in Schedule 2 of the Housing Act 1988.

The most common reasons for evicting a tenant are:

  • rent arrears
  • damage or disrepair to the property
  • nuisance.  

You must give your tenant a postal address in England or Wales that they can use for correspondence before rent can be treated as due.

To give your tenants notice using a Section 8, you must fill in a ‘Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy’.

You must specify on the notice what terms of the tenancy have been breached and have to give between two weeks’ and two months’ notice depending on which terms you are relying on.  

You’ll then need to apply to the court for a possession order if your tenants do not leave by the specified date.

Serving a Section 8 notice 

Here are some dos and don’ts for serving a Section 8 notice:

  • Do try to get your tenant to surrender the tenancy or reach a mutual agreement before serving the notice
  • Do consider a Section 21 notice instead, particularly if it’s approaching the end date of the agreed tenancy or it is a periodic tenancy.
  • Do be aware that if you end up going to court, the outcome might not go your way with the effect that no order for possession is granted, especially if the tenant has remedied the breach that you relied on to seek possession
  • Don’t think a Section 8 guarantees eviction, as a tenant may choose to ignore the notice and a judge in court may not decide in your favour

Make a possession order

If you’re tenant refuses to leave after being served an eviction notice you can take action

You can use an accelerated possession order if you served a Section 21 notice, there is a written tenancy agreement and you are not claiming any unpaid rent.

You can use the standard possession claim if you served either a section 8 or 21 notice, or want to get your property back and at the same time claim rent arrears from the tenant.

If the tenant fails to vacate after the order for possession has expired, it will be necessary to instruct the County Court Bailiff to evict – this may take a further four to six weeks or more depending on the County Court.

Standard possession claims

For standard possession claims you need to find the County Court for the area where the property is situated, then fill in a Form N5 claim for possession and N119 particulars of claim for possession:

You will not be able to use the online service for some kinds of standard possession claim, for example where you are making a claim against a squatter or trespasser.

The accelerated possession procedure

You can opt for an accelerated possession order if your tenants haven’t left by the date specified in your Section 21 notice, there is a written tenancy agreement and you aren’t claiming rent arrears.

The accelerated possession procedure is sometimes a quicker way to gain possession as there is usually no court hearing, but you will need to pay the court fee before the action can commence.

For accelerated possession you need to find the County Court for the area where the property is situated, then fill in a Form N5B claim for possession (accelerated procedure):

The court will then send a copy of the application to the tenant, together with a form of reply allowing the tenant to lodge an objection within 14 days, if they wish to.

If successful, you will get an order for possession without a hearing (normally enforceable 14 days after the order is made) and an order that the tenant pay the court fee.

If the paperwork is not in order or if your tenant raises an important issue in their objection, there might be a court hearing.

From the issue of proceedings to receipt of the order for possession, these proceedings normally take between six and ten weeks assuming nothing goes wrong.  

Private Residential Tenancy in Scotland

The new Private Residential Tenancy (PRT) in Scotland has been introduced under the Private Housing Tenancies Scotland Act 2016. It came into force on 1 December 2017.

What you need to know about leasing a property under the new tenancy in Scotland:

  1. Existing tenancies will not change automatically. They will carry on until the tenant or the landlord brings it to an end by serving notice.
  2. The new PRT will have no end date. It can only be terminated by a tenant giving written notice to their landlord or by the landlord using one of 18 grounds for eviction. 
  3. Tenants will have the right to challenge a wrongful termination.
  4. Landlords can only increase rent once a year. They are also required to give tenants three months’ written notice of any rise. 
  5. Tenants can challenge a rise in rent if they think it is unfair.
  6. Landlords will benefit from a more accessible repossession process and a simplified way to give notice.
  7. The new standardised private residential tenancy agreements are now available for landlords.
  8. Read the guides for landlords to find out more about the changes.
  9. Read Shelter’s new online enquiry system (Ailsa) that helps explain the new tenancy in Scotland.

Other useful renting guides

The Department for Communities and Local Government has produced guides which include useful tips for both landlords and tenants.

  • The ‘How to Let‘ guide is aimed at landlords and gives an overview of the private rented sector and includes the requirements for the protection of deposit and good practice suggestions.
  • The ‘How to Rent‘ guide is a guide aimed at tenants and contains details of the main protections afforded to tenant.  
  • The ‘How to Rent a safe home‘ guide is for prospective tenants and is a supplement to the ‘How to Rent’ guide.  It gives a detailed explanation of the main hazards you can find in a rental property.  It also explains your landlord’s duties and what you can do if you have concerns or need to make a complaint.

Understanding Your Gas Safety Duties (pt. I)

Understanding Your Gas Safety Duties (pt. I)

Staying on top of the gas safety in a property you’re renting out may seem like extra hassle but as a landlord you have a number of responsibilities to take into consideration. Cutting corners on gas safety in your properties can have serious impacts, so it pays to understand what your obligations are.

The following is intended for Landlords of properties.

We are keen to highlight that, as set out below,  Landlords are responsible for their properties and have a duty of care to their tenants. This means that Registered Gas Engineers are not responsible for Landlords Gas Safety Checks being in place or up to date.

Coronavirus (COVID-19): Advice for landlords ​

The HSE have provided specific guidance for landlords, to help them with understanding their responsibilities during the pandemic.

What are your landlord responsibilities for gas safety?

The Gas Safety (Installation and Use) Regulations 1998 outline your duties as a landlord to make sure all gas appliances, fittings, chimneys and flues are safe and working efficiently. If you’re letting a property with gas appliances installed, you’ve got three main legal responsibilities:

1. Gas safety checks

To ensure your tenants’ safety, all gas appliances and flues need to undergo an annual gas safety check – and always by a Gas Safe registered engineer. Once this has been done, you’ll be given a Landlord Gas Safety Record or Gas Safety certificate with details of all the checks that were carried out. It can also be referred to as a CP12 certificate.

You can arrange for a gas safety check to be carried out any time from 10-12 months after the last check, without affecting the original check expiry date. If it’s less than 10 or more than 12 months after the last check, you’ll end up with a new deadline date – 12 months from the most recent check.

Appliances owned by your tenants aren’t your responsibility – although it’s still up to you to ensure the safety of any connecting flues, unless they’re solely connected to the tenants’ appliance.

2. Gas Safety Record

Following the annual gas safety check and receipt of your Landlord Gas Safety Record, you’ll need to provide a record of this check to your tenants. By law, a copy of your Landlord Gas Safety Record should be given to your current tenants within 28 days of the gas safety check – and for new tenants, you’ll need to provide this at the start of their tenancy.

For rental periods of less than 28 days, just make sure you’ve clearly displayed a copy of your record within the property. You’ll need to keep copies of this gas safety check record until a further two checks have been carried out..

3. Maintenance

You’ll need to make sure that all gas pipework, appliances, chimneys and flues are kept in safe condition. Check the gas appliances’ manufacturer guidelines to find out how often a service is recommended. If you haven’t got access to these, we’d recommend an annual service – unless your Gas Safe registered engineer suggests otherwise.

Installation pipework isn’t covered by the annual gas safety check, but both we and the HSE recommend that when you request a safety check, you ask your Gas Safe registered engineer to:

  • Test for tightness on the whole gas system, including installation pipework
  • Visually examine the pipework (so far as is reasonably practicable)

There are no formal requirements for you to keep maintenance records, but you’ll need to be able to show that you have regularly maintained the pipework, appliances and flues and completed required repairs.

How much does a Landlord Gas Safety check cost?

The cost of your Landlord Gas Safety check will depend on the Gas Safe registered business who carries out your annual gas safety check. We recommend getting at least three quotes from companies before arranging for the check to be carried out. You can find a registered business in your local area on our Check The Register page. 

Additional information

It’s always a good idea to ensure your tenants know where and how to turn the gas off and what to do in the event of a gas emergency.

In Scotland, a private landlord must provide a carbon monoxide (CO) detector where there is fixed combustion appliance, but this does not apply to appliances solely used for cooking.  In Northern Ireland, a CO detector is required when a new or replacement combustion appliance is installed.

Last but not least, make sure it’s always a Gas Safe registered and qualified engineer that’s carrying out gas work or a gas safety check. Landlords are legally required to make sure this is the case – and it’s the most important step to ensuring your tenants’ safety.

Any issues?

We understand that some relationships between landlords and tenants can become problematic. The tenancy agreement should allow access for maintenance or safety checks, but if your tenant refuses to grant access you must show you’ve taken all ‘reasonable steps’ to comply with the law. This includes repeating attempts to carry out the checks and writing to the tenant to explaining that safety checks are a legal requirement in place for their own safety. Keep a record of any action you take; you may need this at a later date.

The Gas Safety (Installation and Use) Regulations don’t give powers to ‘force disconnection’ of the gas supply in these circumstances and you may need to seek legal advice.

JUNE: Tenant Fees Acts (EXTENTION)

JUNE: Tenant Fees Acts (EXTENTION)

The Tenant Fees Act 2019 came into force in England last year on 1 June 2019. The Act bans landlords and agents from charging fees to tenants other than those expressly permitted by the Act. It also places a cap on the amount of security deposit a landlord or agent can collect and codifies a procedure for dealing with holding deposits. The ban applies to assured shorthold tenancies granted by private landlords, licence agreements and tenancies of student accommodation (referred to collectively as “tenancies” for the purposes of the Act).

Since 1 June 2019 the Act has applied to all new agreements actively granted on or after this date including renewal agreements. In accordance with the Act’s transitional provisions, the ban has not applied to tenancies entered into before 1 June 2019 or to statutory periodic tenancies that arose at the end of fixed-term ASTs that commenced before 1 June 2019. The transitional period has now come to an end and from 1 June 2020 the Act applies to all relevant tenancies in existence. However, there will still be some differences in how the various rules apply depending on when the tenancy was granted and when the payment was taken.

This is part 1 of a 3-part series exploring how the TFA provisions will apply to tenancies from 1 June 2020. This blogpost will explore how the prohibited payment provisions work and why compliance is important.The second blogpost will look at tenancy deposits and how the cap applies to different tenancies. The final blogpost will examine the holding deposit provisions.

How does the TFA apply from 1 June 2020?

The various scenarios are set out below:

New tenancy granted on or after 1 June 2019 including first tenancies and renewal tenancies

As is the case now, the Act applies so no prohibited payment can be taken. Any term in the agreement that requires a prohibited payment is not binding. This applies equally to the first tenancies and renewal tenancies. This is the most straightforward scenario as no payment taken in connection with that new tenancy will be lawful if it is not a permitted payment under the Act. Requesting a prohibited payment will be a breach of the Act.

Statutory Periodic Tenancy that arose before, on or after 1 June 2019

The Act will now apply to these tenancies as the transitional provisions have come to an end. Any term in the agreement that requires a prohibited payment ceases to be binding on the tenant from 1 June 2020. If a landlord/agent accepts a payment by mistake they have 28 days to return it to the tenant otherwise it is a prohibited payment and they will be in breach of the Act.  However, any payment taken before this date (i.e. up to 31 May 2020) will still be lawful as it will have been taken during the transitional period when the TFA restrictions did not apply.

With these tenancies that span the transitional period some payments may have been taken lawfully while later payments may not be lawful. For example, reference fees and inventory fees may have been taken lawfully at the commencement of a tenancy and default fees collected lawfully throughout the tenancy. However, a check-out fee due to be charged at the end of the tenancy will be unlawful if taken on or after 1 June 2020. Difficulties may arise if payments were taken from tenants ‘on account’ at the start of their tenancies when the fee was still allowed but the charge is only actually incurred at the end of the tenancy, for example, to cover a check-out inspection. That fee is likely to be prohibited even if collected before the ban applied and the money should be returned to the tenant.

Tenancies granted before 1 June 2019 including contractual periodic tenancies and tenancies still within their original fixed term

The Act will also now apply to these tenancies as the transitional provisions have come to an end. There is no exemption for tenancies that have a longer fixed-term period or have been contractual periodic tenancies from the outset. The ban applies retrospectively to these tenancies. Again, from 1 June 2020 any term in the tenancy requiring such a payment will cease to have effect and if a payment is accepted it must be returned within 28 days of receipt otherwise it is a prohibited payment and the landlord or agent will be in breach of the Act.

Why is this important? What are the sanctions for non-compliance?

Compliance with the TFA is important because there are serious consequences for breaching the Act. Local authorities and the lead enforcement authority can issue penalties of up to £5000 for each breach of the Act and repeated non-compliance can result in prosecution or a financial penalty of up to £30,000, banning orders and an entry on the Rogue Landlord Database and/or the Mayor of London’s Rogue Landlord Checker. Tenants can also bring claims against the landlord to recover fees charged unlawfully. You can read more about enforcement of the Act here.

One of the biggest deterrents to non-compliance is the restriction on recovering possession from assured shorthold tenants. A landlord in breach of the Act is not able to serve a valid section 21 notice until any prohibited fee has been returned to the tenant or, with the tenant’s consent, credited to their rent account or deposit (if that does not take the deposit above the cap).

Tenant advisers will have updated their section 21 checklists to check compliance with Act and the Court’s N5B Claim Form for seeking possession using the accelerated procedure has now been amended to include a number of questions relating to the Act. There is no doubt that tenant representatives will be analysing payments carefully to check that any fee taken was permitted. If it was not this could provide the tenant with a complete defence to a section 21 possession claim. However, as illustrated above, this will not always be straightforward and will involve checking when the tenancy was granted, the date when the payment was taken (and potentially when the charge was actually incurred) and, if applicable, the date the payment was repaid to the tenant. Some fees will have been taken lawfully at the time, even if they are now prohibited. Landlords/agents and their advisers will also need to ensure that they have scrutinised any payments so that they can demonstrate compliance and, if necessary any prohibited payments are repaid prior to serving a section 21 notice.

More Links, Content, Supporting Documentation & Solutions To Follow October 2020. TLA.

Goverment Guides For Landlords Introduction

The definition of House in Multiple Occupation (HMO) changed under the housing act of 2004, with most student shared houses being included as HMOs for the first time. Also landlords of HMOs that are three storeys or more and are occupied by five people of more will need to apply for a licence. In line with this change a few guide were produced to give landlords greater awareness of their responsibilities and the additional responsibilities that have been proposed for the future.

HMO licensing guide for Landlords

This guide provides information regarding the laws and regulations governing Houses of Multiple Occupation and the requirements for licensing HMO’s.

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AST Guide for Landlords

 From the department for Communities and Local Government comes a guide for Landlords and Tenants rights and responsibilities if the letting began on or after the 15th of Jan 1989.

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Proposed Law Changes for Renting Homes

Published by the Law commission, an indepandant body set up by the government, this paper outlines the proposed law changes for renting a home and how the suggestions of the commission will effect landlords.

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