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There has been a significant increase in the availability of private rented property over the last few years and therefore an increase in the number of tenants and landlords. As a result it is increasingly important to know and understand your rights and obligations.
Firstly, however it is important to understand and make sure you know the type of arrangement that exists between you as the owner of the property and the occupier. The nature of that arrangement can be dependant on the type of accommodation provided.
The following types of occupation and accommodation (with the exception of council/social housing) do not generally provide enhanced legal protection where:
- You live on the premises and you share some of the rooms such as a bathroom, kitchen or other living space. In this case the occupier will not be a tenant. Legally known as an excluded occupier, they will often be referred to as a lodger.
- You own a hostel or bed and breakfast hotel, an occupier is likely to fall into the same category as above and be an excluded occupier.
- You have been granted a license to occupy which creates an agreement for you to occupy the property for a defined length of time. This is often used for very short stays.
- You are an employer providing living accommodation as part of the job and as such your employee is a service occupier or tenant. This can be quite a complex area of law and further clarification may be required.
- You are managing student halls of residence which is provided by a college or university, but your occupiers may qualify for basic protection.
- It is a business farm tenancy. These are complex legal situations and specialist advice will be required.
- You have granted a Tenancy at Will (where an occupier is in occupation pursuant to negotiations for a lease). This is a flexible tenancy which is indefinite and continues until one party gives notice bringing the tenancy to an end.
If none of the above applies, and the rent is paid to you as a landlord, and you do not share the premises with the occupier, then it is likely you have entered into an assured shorthold tenancy (AST) even if there is no agreement in writing.
Assured shorthold tenants
An AST is by far the most widely used types of tenancy. These types of tenancies are usual for a minimum fixed period of 6 months and continue to roll on month by month once the initial fixed term has expired unless a new fixed term tenancy is negotiated/agreed.
Assured tenancies are those which are often not for a fixed period and can therefore be significantly more complex to deal with. The grounds for possession for these types of tenancy can be different and also more expensive.
These types of tenancies can arise in one of three ways:
- If the tenant started to occupy your property between 15.1.1989 and 28.2.1997 and they were not given notice the tenancy was an AST, and they don’t fall into one of the situations listed above they could be an assured tenant. Different and more complex considerations may apply to your circumstances
- They moved in after 28 February 1997 and were given notice stating that the tenancy is an assured tenancy.
- You may also be an assured tenant if you became the tenant because the tenancy was passed to you after a regulated tenant died.
Since April 2007 it has been a requirement for all landlords taking a deposit from a tenant in relation to an assured shorthold tenancy (AST) agreement, to place that deposit with a recognised deposit service.
There are three such services:
- Deposit Protection Service (Custodial and Insured)
- My Deposits Tenancy Deposit Scheme
- Tenancy Deposit Scheme
A landlord's duty to protect a tenant's deposit
For all AST’s created after 6th April 2007 the deposit you take from your tenant must be protected in one of the approved government schemes. Failure by you to do so can have significant consequences. In addition you must also provide your tenant with the prescribed information about the deposit within 30 days of having received it.
There have been a number of cases about deposits and failure to protect them when a fixed term tenancy becomes a periodic tenancy at the end of that term. The situation now is that in the event the tenancy continues or is renewed after 26th March 2015, the deposit does not have to be re-protected or re-registered provided that it remains with the same scheme and it is the same tenants.
If the tenancy started before April 2007 and has been renewed or remained periodic since the fixed term has expired, and the tenants have remained the same, there are now 90 days, from 26th March 2015, to register the deposit with an approved scheme and serve the prescribed information.
Information a landlord must provide
You must provide your tenant with all the information the law requires (known as the prescribed information) within 30 days of receiving your deposit, including:
- your name and contact details
- the amount of deposit received and the address of the tenancy
- details of the tenancy deposit protection scheme you are using
- a copy of the deposit protection certificate signed by you
- information about the purpose of the tenancy deposit protection scheme
- how the tenant gets the deposit back at the end of the tenancy
- what to do if there is a dispute about the deposit.
Many landlords, use agents to deal with this, and the relevant paperwork is included in the tenancy agreement
Types of tenancy deposit protection schemes
The two types of tenancy deposit protection schemes are:
Custodial schemes – where you or your agent pays the deposit into the scheme, where it will be kept until the end of the tenancy.
Insurance scheme – you or your agent keeps the tenant's deposit but pays an insurance premium to the scheme. This effectively insures the deposit for future return/loss.
Penalties when a deposit is not protected or is protected late
If you do not follow the correct procedure to protect the deposit, your tenant may apply to the court for compensation of 1-3 times the value of the deposit paid.
So if you:
- Protected the deposit after 30 days or
- Failed to provide your tenant with details of the deposit scheme used within 30 days or
- Failed to protect the deposit at all
Your tenant can apply to the court either during the course of the tenancy or after it has expired, for a remedy.
A court can also order you to protect a deposit in a suitable scheme.
What happens if you fail to register your deposit?
With standard AST’s a landlord can decide to evict the tenant after the fixed term has expired by issuing a section 21 notice giving the tenants two months to leave the property. If the tenants do not leave the next step would generally for you to issue court proceedings.
However in order to issue the proceedings you will have to prove that you have protected the deposit and served the relevant notice with details of that deposit. If that has not been done, then no further action may be taken by you and, generally, you cannot evict the tenant on this ground.
You may still be able to evict the tenant for other reasons, such as non-payment of rent, but that is a different matter.
Rules you must follow
In order to evict a tenant you must follow strict procedures. This procedure will depend upon the nature of the type of tenancy that you have. Here, we will deal with the situation where your tenant is occupying the property under an assured shorthold tenancy agreement (AST) where:
- the tenancy has or is about to expire and/or
- the tenant may be in arrears with the rent.
If you don’t follow those procedures, you may be guilty of illegally evicting or harassing your tenant.
Rules for fixed-term ASTs
Fixed-term tenancies run for a set amount of time and in order for you to terminate this tenancy at the end of that fixed period you must:
- Provide the tenant with the correct notice. This is known as a section 21 notice.
- The notice period must be for at least 2 months and cannot expire before the end of the fixed period.
If the tenant refuses to leave at the end of the notice period, and the fixed period has expired you may be able to apply to the court for a possession order. .
Rules for statutory periodic ASTs
A statutory periodic tenancy occurs when the fixed term AST has expired. The tenancy will continue on the same terms and conditions as the written agreement but there are differences if you wish to terminate the agreement.
Where you wish to give your tenant notice you must:
- Provide this in the correct format. This is known as a section 21 notice
- The notice period must be for at least 2 months ending on a rent day. In effect this means the notice period will be longer than 2 months. These notices during the periodic tenancy can be tricky and care must be taken to make sure the dates are correct.
If the tenant refuses to leave at the end of the notice period, and the fixed period has expired you may be able to apply to the court for a possession order.
Rules for non-payment of rent
During the fixed term, you can only terminate a tenancy for specific reasons and one of these is non-payment of rent for a period of 8 weeks or 2 months if the rent is paid monthly. In order for you to succeed on this ground you must:
- Issue the correct notice, often referred to a section 8 notice. Section 8 refers to section 8 of the Housing Act 1988 and contains 17 grounds for which a landlord may seek to repossess the property. This notice must be in a prescribed format. This means it is an approved form where the wording has been carefully drafted to make sure that the tenant understands it and the nature of the action that is being taken.
- The form must set out the ‘ground’ on which possession is being sought. For rent arrears this means ground 8 (not to be confused with section 8) and this is known as a mandatory ground. This means that if you prove that that 2 months/8 weeks arrears are outstanding at the time the notice is issued and at the time of the court hearing, and there are no other issues such as outstanding repairs, the court should grant possession.
- There are other grounds which it is also useful to include for an action of this type, such as grounds 10 and 11 which concern late and irregular payment of rent. However these are discretionary grounds and if proved the court may grant possession
- Allow the tenant 14 days to pay the arrears
- Obtain a court order if they do not pay
If the tenant does not leave you may have to apply to the court for possession.
Accelerated possession – Section 21 Proceedings
Where you have given two months notice (section 21) to your tenant and they have not left the property, you may be able to apply for an accelerated possession order. This is often quicker than a normal eviction and doesn’t usually need a court hearing.
You can only do this if:
- you have an AST or a statutory periodic tenancy
- there is a written tenancy agreement a copy of which can be attached to the application
- you have given the required written notice (a minimum of 2 months) in the right form
- you are not asking your tenant to leave before the end of a fixed-term tenancy
- the deposit you received has been properly protected in an approved scheme
If you have not followed the rules above it may be possible that your tenant may apply to stop the proceedings and/or the court will not grant the accelerated possession order.
How it works
You will need to complete the necessary form N5B in triplicate. The court will send a copy of the application to the address of the rented property for the tenant. To challenge the application your tenant will need to do this in 14 days.
A judge will look at all the evidence and decide either to:
- issue a possession order meaning your tenant is required to leave the property within a stated time. This is usually what happens.
- have a court hearing if the paperwork is not in order or your tenant has raised an important matter
If a possession order is made either with or without a hearing your tenant will be given 14 or 28 days to leave the property which in some cases may be extended to 42 days although this is unusual.
If your tenant does not leave at the end of the time, you can apply to the court for a warrant for possession which means a bailiff attend the property to make sure the eviction takes place.
Possession Proceedings for non-payment of rent
If you have served a section 8 notice on your tenants and the rent remains unpaid you may wish to start possession proceedings. For this type of action there is no accelerated option but you can apply online here at the .gov website. This will allow you to deal with the case electronically and you can claim both possession and a money judgement for costs and rent arrears.
Once the matter is heard and a possession order is made the tenant will be given a time to vacate the property. If they do not leave you can apply to the court for a warrant for possession for an order that a bailiff attend the property to make sure the eviction takes place. To do this you will need to use this form here.
If your tenant does leave before proceedings for eviction are issued, but the rent remains outstanding, and you wish to recover this, you may bring an action in the small claims court. These proceedings can also be started electronically and you can find it here.
Rules for excluded tenancies or licenses (lodgers)
If you share the property with your tenant there is no formal process required to terminate the tenancy and a court order is not required to evict the occupier.
In these circumstances you only need to give you ‘reasonable notice’ to quit and this doesn’t have to be in writing.
What is reasonable will depend very much on the circumstances of the matter but can include:
- how long the occupier been living there
- the nature of issues requiring you to want them to leave
- how often rent is paid
- whether you get on with your occupier
- if the rent is up to date
If your occupier does not leave at the end of the notice period it may be possible for you to change the locks to prevent access to the property provided that you return all property which does not belong to you. This is always a very extreme action and further advice is recommended.
Other areas that may be of interest.