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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 the owner of the property and the renter. The nature of that arrangement can be dependent 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:
- You rent from the council or housing association and as such will be a secure or assured tenant with significant rights.
- Your landlord lives on the premises and you share some of the rooms such as a bathroom, kitchen or other living space, you will not be a tenant. Legally known as an excluded occupier, you will often be referred to as a lodger.
- You live in a hostel or bed and breakfast hotel you are likely to fall into the same category as above and be an excluded occupier.
- Your living arrangements are provided as part of your job and as such you may be a service occupier or tenant. This can be quite a complex area of law and further clarification may be required. Essentially if you lose your job you may also lose your home.
- You are living student halls of residence which is provided by a college or university you could qualify as an occupier with basic protection.
- You are an agricultural occupier possibly with a business farm tenancy. These are complex legal situations and specialist advice will be required.
If none of the above applies and you pay rent to an absent landlord, one who does not share the premises with you then you are likely to have an assured or protected tenancy
Assured shorthold tenants
By far the most widely used typed of tenancy is an assured shorthold tenancy (AST). 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 AST is negotiated which will then follow on from the old AST.
Assured tenancies are those which are often not for a fixed period and can therefore be significantly more complex to deal with but may provide you, as the tenant, with greater security.
These types of tenancies can arise in one of three ways:
- If the you started to occupy your property between 15.1.1989 and 28.2.1997 and you were not given notice the tenancy was an AST,
- You moved in after 28 February 1997 and were given notice stating that the tenancy is an assured tenancy.
- 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
A landlord's duty to protect a tenant's deposit
For all AST’s created after 6th April 2007 your deposit must be protected in one of the approved government schemes. Failure by your landlord to do so can have significant consequences. In addition your landlord must also provide certain information, known as prescribed information, within 30 days of receipt.
If your tenancy was created after 6th April 2007, your deposit paid and properly protected, and the prescribed information served at the outset of your tenancy, your landlord will have complied with the requirements of the scheme. If the tenancy is renewed for a further term, or continues as a periodic tenancy, after 26th March 2015 it is not necessary for your landlord to reregister the deposit provided there have been no changes.
If your tenancy started before 6th April 2007 and has continued with the same tenants, either on a series of fixed terms, or on a periodic tenancy (or both), and the deposit has never been registered, your landlord now has 90 days, from 26th March 2015, to register it with one of the deposit services and send you the prescribed information. Failure to do this will mean your landlord has breached the regulations.
Information a landlord must provide (prescribed information)
Your landlord must provide you with the prescribed information within 30 days of receiving your deposit, including:
- the landlord's name and contact details
- the amount of deposit paid and the address of the tenancy
- details of the tenancy deposit protection scheme they are using
- a copy of the deposit protection certificate signed by the landlord
- information about the purpose of the tenancy deposit protection scheme
- how to get your 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 documentation.
Types of tenancy deposit protection schemes
The two types of tenancy deposit protection schemes are:
Custodial schemes – your landlord or his agent pays your deposit into the scheme, where it will be kept until the end of the tenancy.
Insurance scheme – your landlord or his 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 your landlord does not follow the correct procedure to protect the deposit, you, as the tenant, may apply to the court for compensation between 1 and 3 times the value of the deposit paid.
So if your landlord:
- Protected your deposit after 30 days or
- Failed to provide you with details of the deposit scheme used within 30 days or
- Failed to protect your deposit at all
Application can be made to the court either during the course of the tenancy or after it has expired.
A court can also order a landlord to protect a deposit in a scheme. However, if they landlord did not protect the deposit correctly the tenant can still bring a claim.
What happens if your landlord fails to register your deposit?
With standard AST’s your landlord can decide to evict you after the fixed term has expired by issuing a section 21 notice giving you two months to leave the property. If you do not leave the next step would be for the landlord to issue court proceedings.
However in order to serve a valid s21 notice and issue the proceedings your landlord will have to prove that he has protected your deposit and provided you with details of that deposit protection. If that has not been done, then no further action may be taken by your landlord and he cannot evict you on this ground.
Your landlord may still be able to evict you for other reasons, such as non-payment of rent, but that is a different matter.
Asking a court to order the return of your deposit
In the event that you need to take action against your landlord for failure to protect the deposit, within the 30 day time scale or at all, you should first send what is known as a letter before action. In this you should details the failure of your landlord and what you are requesting by way of a remedy. You should give a time limit for your landlord to remedy the problem. This is usually 14 days.
Once this time limit has expired you can apply to the county court to order your landlord to refund your deposit to you and pay you compensation.
You should apply to the court using Form N208 which can be downloaded with the necessary guidance notes.
Process your landlord must follow
In order for your landlord to evict you, they must follow strict procedures. This procedure will depend upon the nature of the tenancy that you have. Here, we will deal with the situation where you are occupying the property under an assured shorthold tenancy agreement (AST) where either:
- the tenancy has or is about to expire and, or
- you may be in arrears with your rent.
If they don’t, follow those procedures, they may be guilty of illegally evicting or harassing you.
Landlord’s action where the tenancy has not finished
Fixed-term tenancies run for a set amount of time and in order for your landlord to terminate this tenancy at the end of that fixed period they must:
- Provide you with the correct notice. This is known as a section 21 notice. There is currently no prescribed format for this form but they can find these easily on line.
- The notice period must be for at least 2 months and cannot expire before the end of the fixed period. In practice this notice is frequently give to the tenant at the outset of the tenancy or part way through the fixed period. The notice requires you to vacate the property at the end of the notice period.
- If the section 21 notice is served when there are less than two months left on the fixed term of the tenancy, the date by which you will be required to vacate the property will be specified on the notice and will not be less than two months from the date it is sent to you.
If you do not leave at the end of the notice period, which will be no earlier than the end of the fixed term of the tenancy, your landlord may start possession proceedings to recover the property.
Landlord’s action where the tenancy has finished
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 your landlord wishes to terminate the agreement
Where your landlord does wish to give you notice they must:
- Provide this in the correct format. This is known as a section 21 notice. There is currently no prescribed format for this form but they can find these easily on line.
- The notice period must be for at least 2 months and the notice must expire on a rent day. In some cases this will mean that the actual notice is for a longer period that 2 months
If you do not leave at the end of the notice period, and the fixed period has expired your landlord may apply to the court for a possession order.
Eviction for non-payment of rent
During the fixed term, your landlord 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 them to succeed on this ground they 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 your landlord proves 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 you 14 days to pay the arrears
- Obtain a court order if you do not pay
If, you receive one of these notices and you do not pay the rent owed, your landlord may apply to the court for possession.
Accelerated possession – Section 21 Proceedings
Where you have been given two months notice (section 21) and you not left the property, your landlord 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.
Your landlord 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 been given the required written notice (a minimum of 2 months) in the right form
- you are not being asked to leave before the end of a fixed-term tenancy
- the deposit you paid has been properly protected in an approved scheme
If your landlord has not followed the rules above it may be possible to stop the proceedings and/or the court will not grant the accelerated possession order.
How it works
Your landlord 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 you 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 you will be 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 you 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 you do not leave at the end of the time stated in the order, your landlord can apply to the court for a warrant for possession which means that a bailiff will attend the property to make sure the eviction takes place.
Possession Proceedings for non-payment of rent
If you have been served with a section 8 notice for unpaid rent, and this is not paid within the 2 week notice period your landlord may wish to start possession proceedings. For this type of action there is no accelerated option but they can apply online here at the .gov website. This will allow the landlord to deal with the case electronically and they 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 you do not leave your landlord can apply to the court for a warrant for possession and for an order that a bailiff attend the property to make sure the eviction takes place.
If you do leave before proceedings for eviction are issued, but the rent remains outstanding, your landlord may wish to recover this, via an action in small claims court
Rules for excluded tenancies or licenses (lodgers)
If you share the property with your landlord there is no formal process required to terminate the tenancy and no court order is not required to evict you.
In these circumstances your landlord only needs 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 you’ve been living there
- the nature of issues requiring the owner to want you to leave.
- how often you pay the rent
- whether you get on with your landlord
- if the rent is up to date
If you do not leave at the end of the notice period it may be possible for your landlord to change the locks to prevent access to the property provided that your belongings are returned to you.
Other areas that may be of interest.