This is one of the most popular forms of renting a property and has been in existence since 15 January 1989.

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1 Business law Fact sheet Assured shorthold tenancies (England only) This factsheet applies to properties in England only. From 1 October 2015, the Deregulation Act 2015 (the Act) has changed the law in England, so it differs substantially, in significant areas, from the law relating to properties in Wales. Please ensure you read the correct fact sheet according to where the property in question is situated. In January 2016 the Government introduced a requirement for private landlords across England to make right to rent checks of prospective tenants aged 18 and over before the start of any new tenancy entered into on or after 1 February If a private landlord fails to comply, they may receive an unlimited fine, or in the most serious circumstances, imprisonment. Please see our Right to Rent Checks Factsheet for detailed guidance on this requirement. 1. What is an Assured Shorthold Tenancy? This is one of the most popular forms of renting a property and has been in existence since 15 January The main benefit to a landlord is that by granting an assured shorthold tenancy he can minimise the tenant's security of tenure and so have an absolute right to regain possession at the end of the term, provided the correct steps are followed. The landlord ALWAYS needs to go to court to evict a tenant if they do not leave voluntarily. If a landlord unlawfully evicts a tenant, without obtaining a court order, they commit a criminal offence. What are the essential elements for an Assured Shorthold Tenancy to exist? In order to grant an assured shorthold tenancy the following main conditions must be satisfied: (1) The tenant or tenants must be individuals. Therefore lettings to limited companies are excluded. (2) The tenant must occupy the property throughout the term as his only or main home. This will be a question of fact, although temporary absences such as holidays will be permitted. (3) The property must be let as a separate dwelling, which can include a flat or bed sitting room. This is intended to exclude landlords letting accommodation which lack some essential features of a property, such as a kitchen or bathroom. However, where a tenant shares some of the essential features of the property with others and provided they have exclusive possession of at least one room, then this can be an assured shorthold tenancy e.g. if three individuals have use of their own bedrooms but share the bathroom and kitchen with each other, then this will be sufficient. It is important to note that if, however, the accommodation is shared with a resident landlord, then the tenant will not have an assured shorthold tenancy. (4) The rent payable must not exceed 100,000 per annum. This was increased from 25,000 per annum on 1 October Any pre-existing tenancies with rent of between 25,000 and 100,000 that were not assured shorthold tenancies previously automatically became ASTs on that date. As such, from that date onwards, any deposits previously received immediately needed to be protected (see the fact sheet on tenancy deposit schemes), and the resulting ASTs will need to be terminated in accordance with this fact sheet. 1

2 2. How is the tenancy created and what terms should be imposed? As long as there is agreement over the basic terms and the conditions referred to in paragraph 1 above, then an assured shorthold tenancy will have been created. There is no requirement for the tenancy to be in writing and since 28 February 1997 the tenancy does not need to be preceded by serving on the tenant a Section 20 Notice. In order to avoid disputes it is sensible to enter into a written agreement. The following terms should be included: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) Description of property. The date the tenancy starts. The amount of rent payable, the date it is due to be paid and how it is to be paid. Any rent review arrangements. The length of the term. The name and address of both the landlord and tenant. Responsibility for paying utility charges and council tax. Payment of a deposit. A covenant by the tenant prohibiting any unreasonable alterations. A covenant by the tenant prohibiting any unreasonable assigning, sub-letting or sharing. A covenant by the tenant not to cause any damage to the property and to take reasonable care of the landlord's fixtures and fittings. It is sensible to also attach an inventory, providing details of the landlord's fixtures and fittings and their state and condition at the date of the letting. A covenant by the tenant limiting the use of the property solely to that of residential use. A covenant by the tenant not to unreasonably keep any animals at the property. A forfeiture clause. This has the effect of enabling the landlord to bring the tenancy to an end, provided the correct procedure is followed. 3. Does the landlord need to provide anything else to the tenant? From 1 October 2015, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the Regulations) have set out certain prescribed information which a landlord must provide to a tenant regarding the property. These changes will not apply to assured shorthold tenancies which commenced prior to 1 October 2015, nor to statutory periodic tenancies which commence after that date, but which follow directly on from a fixed term assured shorthold tenancy which started before that date. The Regulations will only apply to new tenancies granted on or after 1 October 2015, including contractual periodic tenancies. The Landlord must: Provide the tenant with an energy performance certificate free of charge, in accordance with section 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 with 28 days of the tenancy being created. Provide the tenant with a gas safety certificate, in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations The requirement to provide a gas safety certificate is limited to providing a copy, and although regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 provides that the landlord shall provide a copy of the record within 28 days of the gas safety check, the Regulations disregard the requirement to comply within 28 days. Provide the tenant with a copy of DCLG: How to rent: The checklist for renting in England. ( df). Landlords are not required to supply a further copy of the booklet each time a different version is published during a tenancy, and the requirement does not apply where (a) the landlord is a registered provider of social housing or (b) the landlord provided the tenant with the booklet under an earlier tenancy and that version is the latest version. Failure to provide this prescribed information will mean that the landlord is prevented from serving a valid Section 21 Notice (see paragraphs of this fact sheet). 2

3 Smoke and Carbon Monoxide Alarms From 1 October 2015, the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 came into force. The aim of the regulations is to reduce the number of injuries or deaths from smoke or carbon monoxide poisoning in the private rented sector. All landlords must comply with for any property that is occupied by tenants as at 1 October THIS APPLIES TO ALL EXISING TENANCIES. All landlords of private residential rental properties will be required to install a smoke alarm on each storey of the premises on which there is a room used wholly or partly as living accommodation (this is said to include bathrooms and lavatories). All landlords of private residential rental properties will be required to install carbon monoxide alarms in any room of the premises which is used wholly or partly as living accommodation and which contains a solid fuel burning combustion appliance, which includes coal or wood burning fires and wood burning stoves. All landlords are required to make checks to ensure that each alarm that is installed is in proper working order on the day a new tenancy begins if it is a tenancy that begins after 1 October This does not apply to tenancies that are renewed or continue after that time. As best practice, landlords are advised to keep records of the checks that they carry out before each new tenancy commences so that they can prove they complied with their obligations. It is considered acceptable for a landlord to insert a new clause in to any new tenancy agreement granted after 1 October 2015 to require a tenant to carry out monthly checks on the alarms to ensure they are in good working order and to report any defects or problems immediately to the landlord to remedy. Failure to comply with any of the above Regulations means that a local authority who has knowledge or reasonable grounds to believe that a landlord is in breach can serve a remedial notice on the landlord giving him 28 days in which to remedy matters failing which a penalty may be payable. If the landlord does not comply within the 28 days the penalty payable can be up to 5,000. The Regulations do not specify whether the alarms should be battery operated or hardwired and essentially this is therefore up to the landlord. These Regulations will not apply to HMO licensed premises, resident landlord situations, long leases, students halls of residence, hostels and refuges, care homes, hospitals and hospices or other healthcare accommodation. The Department for Communities and Local Government (DCLG) has published a booklets containing guidance for local authorities, and landlords and tenants: Does the initial term have to be for a minimum fixed period? No, there is no longer any requirement for the tenancy to be for a minimum fixed term. The parties are therefore free to agree upon the length of the tenancy. However, a landlord cannot recover possession of the property within the first 6 months of the term unless they are able to rely upon one of the grounds set out in the Housing Act 1988 ("the Act") which are set out in paragraph Can the landlord charge a deposit? It is prudent for the landlord to require a tenant to pay a deposit before moving into the property. This is normally held by him as security against damage, unpaid bills, unpaid rent, etc. The amount is subject to negotiation and between 1 and 2 months rent in advance is often considered to be a suitable sum. The amount should be referred to in the tenancy agreement. Please note that since 6 April 2007, all deposits, taken by landlords for Assured Shorthold Tenancies in England and Wales, must be protected by a tenancy deposit scheme. Since April 2007, failure to protect any deposit received, via the tenancy deposit scheme, and to provide the prescribed information to the tenant, can result in a court order requiring the landlord to pay the tenant of between 1 and 3 times the deposit amount. Furthermore, a landlord will not be able to regain possession of a property via a Section 21 Notice until this is rectified. 3

4 For tenancies created after April 2007, which have since become either periodic, or have renewed, as long as the deposit was initially correctly protected at the right time, and the prescribed information served, there is no need to do this again. Where a deposit was taken before April 2007, and the tenancy became periodic before that date, the landlord is not in breach of the law and does not have to protect the deposit now. However, the deposit must be protected, or the money returned to the tenant (or the person who paid it), before any Section 21 Notice can be served (see paragraph 11). In these circumstances, landlords will not be liable for a financial penalty for not protecting the deposit, but will need to take further action if they need to use this particular eviction process. Where a deposit was taken before April 2007, but was not protected, and the tenancy has since become periodic after that date, a landlord must now protect the deposit and the prescribed information must be served. The landlord had a 90 day period of grace to do this until 23 June If the landlord protected the deposit and served the prescribed information within this time, the deposit will be treated as if it had always been protected. If a landlord has not done this, they will be in breach, and will be barred from evicting using a Section 21 Notice, unless and until the deposit is returned to the tenant, and even if this is done, a landlord could, in any event, still be subject to a fine of up to 3 times the original deposit. More detailed guidance is given regarding deposits in our fact sheet on tenancy deposit schemes. 6. Is the tenant entitled to a rent book? Only if the rent is payable on a weekly basis. 7. What are the tenant's obligations? These should be set out in the tenancy agreement. The most likely obligations imposed on a tenant will be the following: (a) (b) To pay the Council Tax if they occupy the property as a single household. To pay for gas, electricity, water, telephone, etc. (c) To take reasonable care of the landlord's property (subject to the landlord's obligations referred to in paragraph 8 below), together with the landlord's fixtures and fittings. 8. What are the landlord's obligations? These should be set out in the tenancy agreement. They should include the following: (a) To repair (unless the term is for 7 years or more): The structure and exterior of the property. Baths, sinks, basins and other sanitary installations. Heating and hot water installations. (b) To be responsible for the safety of: Gas and electrical equipment the landlord must ensure that all gas appliances are kept in good working order and an annual safety check is carried out by a Gas Safe registered tradesman. A landlord is also advised to have an annual safety check by a qualified electrician of all electrical appliances. Regarding the gas, a record of the check must be given to the tenant within 28 days of each annual inspection Furniture and furnishings if the landlord lets the property furnished then he must ensure that it complies with the fire resistance requirements laid down in the Furniture and Furnishings (Fire) (Safety) Regulations All new and second hand furniture provided in the property must meet the fire resistance requirements. (c) To give quiet enjoyment: This means that the landlord must not disturb or unreasonably interfere with the tenant's occupation of the property. Breaches of this implied covenant can include incidences where the landlord has attempted to disconnect or reduce the essential services such as water, gas and electricity or regain possession of the property without the tenant's consent and without a court order. If a landlord interferes excessively, then there is a risk that they may be accused of harassment, or even of unlawful eviction, both of which are 4

5 criminal offences. 9. What is an Energy Performance Certificate (EPC) and what are a landlord s obligations in respect of this? An EPC is a certificate which provides information about the energy efficiency of a property. An EPC is one of the compulsory documents which must be provided in a Home Information Pack. A property is given energy and carbon efficiency rating between A (the highest) to G (the lowest). The certificates provide home owners, buyers and tenants with greater awareness about the energy efficiency of a property and it is designed to encourage them to make improvements to the property s energy efficiency. However, there is no legal requirement to make the improvements which are suggested in the EPC and accompanying report. All landlords are required to ensure that they make available a valid EPC (free of charge) to prospective tenants the first time they let their property to a new tenant after 1 October This means that those landlords who rented out their property to a tenant before 1 October 2008 will only be required to provide an EPC if/when they rent out their property again to a new tenant after 1 October An EPC is only required for self-contained properties and is therefore not required when a tenant merely rents a room and shares facilities with the landlord. A landlord must make the EPC and accompanying report available to a prospective tenant as soon as possible and no later than when a written response is provided to a prospective tenant who has asked for information about the building; or when a viewing is conducted. If neither of those occur, the EPC must be made available before entering into a contract to let. From 1 October 2015, a Landlord is prevented from validly serving a Section 21 notice until the tenant has received a copy of the EPC An EPC does not have to be made available if it is unlikely that the landlord will rent out the property to the prospective tenant. This could be due to the tenant not appearing to have the funds to rent the property or if the landlord does not believe the prospective tenant to be suitable (although this must not be for discriminatory reasons). Once obtained, an EPC is valid for 10 years. EPCs can only be obtained from an accredited Domestic Energy Assessor. Further information about the accredited schemes can be obtained from the Communities and Local Government website (see links below). 10. What rights does the landlord have if he wishes to carry out repairs? Where the tenancy is one under which the landlord must repair the property (see paragraph 8 above), then in the absence of any term in the tenancy, there will be an implied covenant by the tenant that the landlord or any person authorised by him in writing may, at reasonable times of the day and on giving 24 hours notice in writing to the tenant, enter the property for the purpose of viewing its condition and state of repair. Again, in the absence of an express term in the lease, there is also an implied term that the tenant will allow the landlord reasonable access to the property to carry out any repairs that are necessary under the terms of the tenancy. 11. How can an Assured Shorthold Tenancy be ended? There are three main ways an assured shorthold tenancy can come to an end. They are as follows: A. Surrender The tenant voluntarily agrees to leave with the consent of the Landlord. B. By service of a Section 21 Notice (s.21 Notice) The s.21 procedure is to be used to bring an assured shorthold tenancy to an end at the conclusion of the term (see paragraphs 12 to 18 below). If the tenant does not leave voluntarily on or before the expiry of the notice, the landlord MUST apply to court for a possession order. This is the no fault procedure. C. By service of a Section 8 Notice (s.8 Notice) The s.8 procedure is to be used where the tenant has broken one or more of the covenants in the tenancy agreement (see paragraphs 19 to 22 below). If the tenant does not leave voluntarily on or before the expiry of the notice, the landlord MUST apply to court for a possession order. 5

6 12. What happens when a fixed term is coming to an end? Provided the tenant has not broken a covenant, then a landlord can only bring the fixed term to an end by giving the tenant at least 2 months prior notice in writing that he requires possession of the property. Such a notice is called a s.21 Notice and it informs the tenant of the date when the landlord requires possession of the property i.e. the last day of the fixed term. There is, since 1 October 2015, a prescribed form for a s.21 notice, which can be found in the Regulations ( This must be used for all new assured shorthold tenancies created from 1 October 2015 onwards (including contractual periodic tenancies), but can also be used for most pre 1 October 2015 tenancies. A s.21 notice must comply with the following requirements: (a) (b) (c) It must be in writing. It must be given by the landlord, or in the case of joint landlords, at least one of them. The full name and address of the tenant must be given, and where there are joint tenants the notice must be given to all of them. (d) The notice must state that the landlord requires possession (see paragraph 14). If for whatever reason a s.21 Notice is not served by the landlord, then unless the tenant moves out of his own free will, the tenancy will continue to run automatically. A landlord is unable to regain possession of the property via a s.21 notice if the rules with regard to deposits have not been complied with. Our fact sheet on tenancy deposit schemes provides more detail in this regard. Furthermore, with regard to a post 1 October 2015 tenancy (including contractual periodic tenancies), a landlord is unable to regain possession of the property via a s.21 notice if the tenant has not been provided with the prescribed information referred to in paragraph 3 (above). If the tenant does not leave voluntarily on or before the expiry of the notice, the landlord MUST apply to court for a possession order or they will be committing a criminal offence if they re-enter and change the locks. 13. What happens if either the landlord or the tenant takes steps to bring the original term to an end or agree a new tenancy? If the same tenant remains in occupation then one of the following tenancies will arise: A. A new Fixed Term This can be for any length depending upon what the parties have agreed. B. A Contractual Periodic Tenancy Before the end of the initial term, the parties may agree to a periodic tenancy i.e. week to week or month to month. C. A Statutory Periodic Tenancy If neither the landlord nor the tenant do anything, then although the fixed term has expired, the tenancy continues, and it becomes a statutory periodic tenancy (i.e. it continues to roll on, but it is no longer a fixed term tenancy). This will only arise where the parties have either not reached any agreement regarding a new term, or have failed to even address the issue. The terms of the tenancy will remain exactly the same as those agreed when the original assured shorthold tenancy was created. Under any of the above tenancies, the tenant is still allowed to remain in occupation until the landlord takes the correct steps under the Act to bring the tenancy agreement to an end. 14. How can a new tenancy following on from the initial term be ended? A landlord can still only recover possession of the property by serving a s.21 Notice or, if the tenant has broken a covenant in the lease, by serving a s.8 Notice, and then, if the tenant does not leave voluntarily, by seeking a possession order from the court and enforcing it via the court. Evicting a tenant against their will, without following these steps will 6

7 be unlawful, and a landlord could be prosecuted for the criminal offence of unlawful eviction. There are now 2 regimes, one for tenancies granted before 1 October 2015 (and including statutory periodic tenancies following on from these see above), and another for all tenancies granted after 1 October Tenancies granted BEFORE 1 October 2015 This paragraph applies to ALL assured shorthold tenancies (including contractual periodic tenancies) which commenced prior to 1 October 2015, AND to statutory periodic tenancies which commence after that date, but which follow directly on from a fixed term assured shorthold tenancy which started before that date. It does NOT apply to contractual periodic tenancies granted after the 1 October, regardless of whether these follow directly on from a fixed term tenancy granted prior to that date, as these are considered to be new tenancies and are subject the new law. If the parties have a fixed term tenancy created prior to 1 October 2015, then in order to bring the fixed term to an end, the landlord must serve a s.21 Notice giving the tenant a minimum of 2 months prior notice before the end of the term e.g. if a fixed term of 6 months is agreed and if the landlord wants to have the property back at the end of the term, he must serve a s.21 Notice before the beginning of the 4 th month. If, at the end of the original fixed term, the parties either do nothing or agree to a periodic tenancy e.g. month to month, then the landlord must still serve a s.21 Notice in order to obtain possession. The s.21 Notice is exactly the same i.e. it must give a minimum of 2 months notice. As long as the tenancy was initially for a fixed term, then whilst any s.21 Notice needs to give at least 2 months notice, it does not need to stipulate that it expires at the end of a period of the tenancy. Where the tenancy started before 1 October 2015, and has always a periodic tenancy (i.e. it has never been for a fixed term) any s.21 Notice must, as well as giving 2 months notice, additionally expire on the last day of the tenancy. For example: where the tenancy runs from the 4 th of each month to the 3 rd of the next month, the last day of a period of the tenancy would be the 3 rd of any month. So, generally, the landlord would have to give at least 2 months notice and state that the tenancy ends on the 3 rd of whenever. NB. this part of s.21 is very strict. To avoid serving an invalid notice, it is always useful to ensure your notice contains the saving formula which should state that if the date in the notice is incorrect, then possession is to be given after the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice. For pre 1 October tenancies 2015, the landlord can use the new precedent s.21 precedent provided in the Regulations, or can use their own version. NB. Section 21(4)(b) will still apply in certain very limited circumstances. If the tenancy has always been a contractual periodic tenancy (i.e. there was never an initial fixed term), and the period of the tenancy is longer than 2 months, for example if it is a quarterly periodic tenancy, then the s21 notice cannot be shorter than the period of the tenancy. As such, for a quarterly periodic tenancy, any s.21 notice would need to be at least 3 months long (and would need to expire at the end of a period), and the s.21 may need to be at least 6 months long (and expire at the end of a period) if the periodic tenancy is an annual periodic tenancy. Tenancies granted AFTER 1 October 2015 This paragraph applies to ALL assured shorthold tenancies (including contractual periodic tenancies) which initially commence on or after 1 October It does NOT apply to statutory periodic tenancies commencing post 1 October 2015 AND which follow directly on from a fixed term tenancy created prior to 1 October With regard to tenancies granted on or after 1 October 2015, under the Act, landlords are no longer able to serve a s.21 Notice within the first 4 months of the start of the original tenancy (as opposed to any continuation/replacement tenancy). Landlords whose practice it is to automatically serve a s.21 Notice at the start of the tenancy are longer be able to do so. It is also, therefore, technically impossible for a s.21 Notice to be validly served bringing a 6 month fixed term tenancy to an end on the last day of the term, as by definition, any such Notice would be unlawful as a result of it being served within the first 4 months. For all tenancies granted after 1 October 2015 (whether they are fixed term, have become periodic, or have always been periodic) any s.21 Notice no longer needs to end on the last day of a period of the tenancy. All s.21 Notices still need to give a minimum of 2 months notice, but the changes under the Act should make things simpler for landlords. S.21 Notices no longer last indefinitely, and under the Act, are only valid for 6 months beginning with the date the notice is given. As such, having served a s.21 notice and having let it expire, the landlord then has a finite period of time 7

8 within which to commence possession proceedings. If legal proceedings have not started within 6 months, the landlord will have to serve a new s.21 Notice and start again. If, at the end of any original fixed term, the parties either do nothing or agree to a periodic tenancy e.g. month to month, then the landlord must still serve a s.21 Notice in order to obtain possession. The s.21 Notice is exactly the same i.e. it must give a minimum of 2 months notice. For all post 1 October 2015 tenancies, the landlord MUST use the new precedent provided in the Regulations. NB. Section 21(4)(b) will still apply in certain very limited circumstances. If the tenancy has always been a contractual periodic tenancy, and the period of the tenancy is longer than 2 months, for example if it is a quarterly periodic tenancy, then the s21 notice cannot be shorter than the period of the tenancy. As such, for a quarterly periodic tenancy, any s.21 notice would need to be at least 3 months long (and would need to expire at the end of a period), and the s.21 may need to be at least 6 months long (and expire at the end of a period) if the periodic tenancy is an annual periodic tenancy. With any s.21 notice served in these circumstances, the landlord must commence possession proceedings within 4 months beginning with the date specified within the notice (i.e. the expiry date). 15. Are there circumstances in which a landlord cannot validly serve a s.21 Notice? (a) (b) A landlord is unable to regain possession of the property via a s.21 notice if the rules with regard to deposits have not been complied with. Our factsheet on Tenancy Deposit Schemes provides more detail in this regard. For all new tenancies granted on or after 1 October 2015 (for meaning - see paragraph 3), the Regulations have set out certain prescribed information which a landlord must provide to a tenant regarding the property. Failure to prove this prescribed information will mean that the landlord is prevented from serving a valid s.21 notice. (c) The Act includes provisions to protect tenants who are living in poor and unsafe conditions from being evicted by the landlord if they complain about the conditions of the property (Retaliatory eviction). This will not apply to ASTs which commence prior to 1 October 2015, nor to statutory periodic tenancies which commence after 1 October, but which follow directly on from a fixed term AST which started before that date. For all new tenancies commencing on or after 1 October 2015, the landlord is restricted from serving a valid s.21 Notice if : the tenant complained in writing to the landlord about the condition of the property; the landlord did not respond within 14 days, provided an inadequate response or served a s.21 Notice upon the tenant; the tenant complained to the local housing authority; and the local housing authority served a remedial notice upon the landlord regarding the conditions. If these conditions are met then the landlord is unable to serve a s.21 Notice within six months from receipt of the remedial notice. However, a landlord is not prohibited from serving a s.21 Notice if: the poor condition of the property is due to the tenant s own conduct; or the landlord is selling the property, and this is a genuine sale (i.e. not to anyone associated with the landlord). 16. Does the tenant have to leave the property when the s.21 Notice expires? Technically the tenant should vacate the property at the expiry of the s.21 Notice. However, frequently they do not. If a tenant fails to vacate then the landlord cannot recover possession of the property without first obtaining a Court Order. 17. What is the accelerated possession procedure? This is the procedure a landlord can use to obtain possession of the property without a court hearing. The procedure can only be used where the tenant has refused to vacate the property following service of a s.21 Notice. It does not apply where the tenant is in breach of covenant. The accelerated possession procedure can only be used where there is, or was, a written tenancy agreement. When the tenancy is not in writing, whilst a s.21 Notice can still be used, and possession can still be sought through the courts, the accelerated possession procedure cannot be used. 8

9 The accelerated procedure is intended to be quicker as there will be no formal hearing and the court will make a decision by looking at the documents submitted by the parties. If a landlord is using the accelerated possession procedure, then he should be aware that a separate action will need to be brought if he wishes to recover rent arrears or other damages. 18. Repayment of overpaid rent From 1 October 2015, the Act requires a landlord to refund a proportionate amount of rent to a tenant if a s.21 Notice terminates the tenancy before the end of a period of the tenancy for which the tenant has paid rent in advance. There is a formula under the Act to work this out, but essentially the tenant should be reimbursed the amount which represents the period for which they were no longer in actual occupation. 19. What can a landlord do if the tenant refuses to pay the rent or is in breach of other covenants in the lease? A landlord can only ever lawfully recover possession of the premises by obtaining a court order. Therefore, any steps taken to unlawfully evict a tenant will make the landlord liable for damages and/or involve him in criminal action. In order to recover possession, the landlord must first serve a Notice of Intention to Institute Proceedings stating the various grounds under the Act (see paragraph 20 below). The Notice is called a Section 8 Notice. The Notice must be in a prescribed form and state the ground or grounds upon which the landlord is relying. In addition to setting out the relevant grounds under the Act, full details of the facts upon which you are relying must be referred to. Failure to complete the s.8 Notice correctly may invalidate the court proceedings. In addition, the Notice must state a date before which proceedings will not be instituted so as to give the tenant every opportunity to take advice or remedy the breach if he can. The notice period is usually 2 weeks. Once the time period in the notice has expired, then the landlord can apply to the court to start proceedings. Again, If the tenant does not leave voluntarily on or before the expiry of the notice, the landlord MUST apply to court for a possession order or they will be committing a criminal offence if they reenter and change the locks. As well as serving a s.8 Notice there is nothing to stop the landlord, if he has not done so already, also serving a s.21 Notice on the tenant. It can be sensible to do so because provided the s.21 Notice is in the correct form, the accelerated possession procedure can be used. This may often be quicker than relying upon the s.8 Notice procedure. Service of a s.21 Notice in addition to a s.8 Notice will also mean that a tenant cannot frustrate a landlord's endeavours to recover possession of a property by, for example, either remedying the defect before the hearing or relying upon the court exercising its discretion in the tenant's favour. 20. What are the most frequently used grounds under the Housing Act specified by a landlord seeking possession of the premises? There are 17 grounds upon which a landlord may rely. Grounds 1 to 8 are mandatory and grounds 9 to 17 are discretionary. Where the landlord is able to prove to the court that a mandatory ground exists, then the court must make an order for possession. Where, however, the landlord is relying upon one or more of the discretionary grounds, then the court may make an order for possession only if it is satisfied that it is reasonable to do so. The grounds relevant to assured shortholds are as follows: Ground 8 (substantial rent arrears) Both at the date of the service of the s.8 Notice and at the date of the hearing: (a) (b) (c) If rent is payable weekly or fortnightly, at least 8 weeks' rent is unpaid. If rent is payable monthly, at least 2 months' rent is unpaid. If rent is payable quarterly, at least one quarter's rent is more than 3 months in arrears. It is essential to note, however, that these arrears must exist both at the time of the service of the s.8 Notice and at the date of the hearing. Therefore, a partial payment by the tenant before the hearing so that, for example, only 6 weeks arrears exist would be sufficient to prevent a landlord from relying upon this ground. 9

10 Ground 10 (rent arrears) Some rent was lawfully due from the tenant and remained unpaid on the date upon which proceedings for possession are begun and were in arrears on the date of service of the s.8 Notice. This is the first of the two discretionary grounds based on rent arrears. For this ground to be established there is no minimum amount of rent that needs to be outstanding. As long as some rent was in arrears at the date of service of the s.8 Notice and at the start of the proceedings, it does not matter whether or not there is any rent in arrears whatsoever on the day of the hearing. It is therefore prudent for a landlord to use this ground in addition to ground 8 (see above) to cover the prospect of a tenant paying off some or all of the arrears before any hearing date. It should, however, be borne in mind that the court can only make an order for possession under this ground if it considers it reasonable to do so. Ground 11 (persistent delay paying the rent) Whether or not any rent is in arrears at the date upon which proceedings possessions are begun, the tenant has persistently delayed paying rent which has become lawfully due. For this ground to exist, there is no need for the rent to be in arrears at all. All that a landlord has to establish is that the tenant has persistently delayed paying the rent. What amounts to persistent delay will be a question of fact in each case. However, it is generally accepted as meaning on more than one occasion. Again, it is prudent to use this ground as an alternative to grounds 8 and 10 (see above). Ground 12 (breach of tenant's obligations) There has been either or both of a breach of an express or implied term in the tenancy agreement e.g. a tenant is always under an implied duty to use the property in a tenant like manner. This ground can still be relied upon even if the breach has been remedied by the tenant on the date of the hearing although, of course, this may have a bearing on the court's decision when considering whether or not it is reasonable for them to make an order for possession. This ground cannot be used where the tenant has not paid the rent. Ground 13 (deterioration of the property through waste or neglect) The condition of the property or any of the common parts has deteriorated because of the neglect or default of the tenant or of any other person residing in the property. This ground therefore extends not only to the acts of the tenant personally but also to other persons residing in the property, for example a spouse, child or lodger. If the deterioration is caused by someone other than the tenant, then this ground can only be established if the tenant has failed to take reasonable steps to remove the occupier who has caused the damage. Ground 14 (nuisance) The tenant, or someone living in or visiting the property has caused, or is likely to cause, a nuisance or annoyance to someone living in or visiting the locality; or The tenant or a person residing in or visiting the property has been convicted of using the property, or allowing it to be used, for immoral or illegal purposes. This ground includes not only the activities of the tenant or other persons residing in the house, but also the conduct of visitors to the property. The nuisance need not only be caused to adjoining properties but can apply to a much wider 10

11 area around the property. Ground 15 (damage to the landlord's furniture) The condition of the furniture in the property has deteriorated because it has been ill-treated by the tenant or any other person living there. This ground will only be available when the dwelling house is let furnished. Ground 17 (false statement by the tenant) The landlord was persuaded to grant the tenancy on the basis of a false statement knowingly or recklessly made by the tenant, or a person acting at the tenant s instigation. This will apply where, for example, a tenant deceives the landlord who, had he known the truth, would not have granted him a tenancy e.g. a tenant informing the landlord he had a job when in fact, he were unemployed. 21. What happens next if a landlord obtains an order for possession? Under both the mandatory and discretionary grounds (see paragraph 20 above), and under the s.21 procedure, even if the landlord successfully obtains an order for possession from the court, then it is important to note that this will not take effect instantly on the day the order is made. Unless the tenant moves out voluntarily, a landlord will not be able to recover possession on the day an order is made. In the circumstances, the landlord must not be tempted to take the law into his own hands to evict the tenant. If the landlord proves a mandatory ground for possession e.g. under ground 8 (see paragraph 20 above) then the court must make an order for possession within 14 days. If however, the tenant shows exceptional hardship, then the date for possession in the order may be delayed for up to 42 days. In the case of a discretionary ground (see paragraph 20 above) the court may adjourn proceedings or make a suspended possession order or postpone the order for possession on such terms as it thinks fit. 22. How can a landlord enforce a possession order? A landlord cannot personally evict the tenant once the time period in the court order allowing him to stay on has expired. The landlord must apply for a warrant of possession and the court bailiff will take the appropriate action to evict the tenant from the property. 23. What happens to items which tenants leave behind when they vacate premises? As a provider of services to consumers, the landlord is under a legal obligation to take care of tenant's possessions. Therefore, you cannot simply sell the tenant s goods or dispose of them if they leave them behind, unless you have a specific clause in the tenancy agreement allowing you to do so. The safest thing to do is to apply for a court order under the Torts (Interference with Goods) Act 1977 (see fact sheet on Torts (Interference with Goods) Act 1977 for further information about this Act). The court may make an order allowing you to sell or dispose of the goods. However, prior to pursuing this option, you should be able to show that you have done all you can to contact the former tenant. You will need to consider whether it is financially viable to apply for a court order if the goods are of limited value. It may not be practical for a landlord to obtain a court order whenever a tenant leaves the premises. The following steps should be followed to reduce the risk of a claim if you sell or dispose of the items: Make every effort to trace the tenant/s to his new address or contact him through any forwarding address you may have. Consider the value of the goods and if appropriate, obtain professional valuations. Take photographs of the items as this will assist you in proving the true nature of the items if this is later disputed. Write to the tenant by registered post or recorded delivery with a legal notice. This will notify them that the goods are available for collection and that they will be kept for up to three months. Make sure your notice clearly identifies you as the landlord and gives all necessary contact details. If the goods remain unclaimed after 3 months you can sell them to a buyer, who will have received good title to them. The original owner will therefore lose all rights to the goods. 11

12 Once you have covered your expenses in this process and rent arrears, any proceeds left over will belong to the original owner (your tenant), if they should turn up within six years. 24. Links Tenants may obtain free advice from their local Citizens Advice Bureau. Find your local CAB office either from your local directory or by visiting A useful website for residential landlords is Communities and Local Government website: This fact sheet was prepared by the Information Unit of LHS Solicitors. It is intended only as a guide and is not to be regarded as a substitute for consultation with one of our Legal Advisors, since every case will ultimately turn on its own particular facts and circumstances. Legal Advice For legal advice, please call your dedicated legal helpline telephone number which can be found on your membership card or policy schedule. If you are driving when using the legal advice service, please make sure it is safe and legal to do so. Employment and Business Law Litigation and Consultancy Support Services LHS team of experienced lawyers will support your legal needs with its litigation, consultancy and prosecution defence services, with particular expertise in HR and employment law, commercial contract, company law and property. Our aim is to quote fees that are competitive, fixed and transparent. LHS Solicitors LLP is regulated by the Solicitors Regulation Authority No and registered in England and Wales. Registered Number OC VAT No Registered office: The Observatory, Chapel Walks, Manchester M2 1HL. Abbey Protection Group Limited is the corporate member of LHS Solicitors LLP. Markel Corporation is the ultimate holding company for Abbey Protection Group Limited. 2017/09 12

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