Tenancy Agreements - Assuring Both Landlords And Tenants
Assured shorthold tenancy agreements (the default agreement format for buy to let
tenancies) 'assure' tenants that unless they break the terms of the agreement they can stay for at least six months. They 'assure' landlords that they can regain possession of their properties at the end of the tenancy.
When landlords reach that position they can issue tenants with what is known as a 'section 21' notice to quit ('section 21' being a reference to the relevant paragraphs in the Housing Act).
This notice must be in writing and allow at least two calendar months from the date the tenant receives the notice before possession is required - if a fixed term tenancy, not expiring before the end of six months, nor expiring before the end of the agreement or a date specified the agreement as when a break clause may be exercised (as long as this is after at least six months). Notices may not be issued before tenancies commence.
There is no particular form of wording required, however, they must include a statement that:
1.) If the tenant or licensee does not leave the dwelling, the landlord or licensor must obtain an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out.
2.) A tenant or licensee who does not know if he or she has any right to remain in possession after a notice to quit or a notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He or she should also be able to obtain information from a Citizens' Advice Bureau, a Housing Aid Centre or a rent service.
Notices can be delivered in person or by post. Landlords should retain copies and any proof of delivery, such as special delivery slips.
Should a tenant, having received proper notice, not give up possession by the specified date, the landlord will be obliged to issue possession proceedings in the county court. If the tenant still will not move out, the landlord can apply for a warrant of execution when bailiffs will be appointed who will oblige the tenant to leave.
Landlords can also seek to regain possession of their property during the course of assured and assured shorthold tenancy agreements if particular circumstances arise - including, for example, rent falling into arrears. The reasons are listed in the 1988 Act as various 'grounds' for possession.
Some are 'mandatory' meaning that if the grounds are justified, the court has no option but to grant possession to the landlord. Other grounds for possession allow the court discretion about what to do.
The mandatory grounds for possession are:
Ground 1: a prior notice ground - The property was previously the landlord's only or main home. Or, so long as the landlord or someone before him or her did not buy the property after the tenancy started, the landlord (or landlord's spouse) requires it to live in as his or her main home.
Ground 2: a prior notice ground - The property is subject to a mortgage which was granted before the tenancy started and the lender, usually a bank or building society, wants to sell it, normally to pay off mortgage arrears.
Ground 3: a prior notice ground - The tenancy is for a fixed term of not more than 8 months and at some time during the 12 months before the tenancy started, the property was let for a holiday.
Ground 4: a prior notice ground - The tenancy is for a fixed term of not more than 12 months and at some time during the 12 months before the tenancy started, the property was let to students by an educational establishment such as a university or college.
Ground 5: a prior notice ground - The property is held for use for a minister of religion and is now needed for that purpose.
Ground 6: - The landlord intends to substantially redevelop the property and cannot do so with the tenant there. This ground cannot be used where the landlord, or someone before him or her, bought the property with an existing tenant, or where the work could be carried out without the tenant having to move. The tenant's removal expenses will have to be paid.
Ground 7: - The former tenant, who must have had a contractual periodic tenancy or statutory periodic tenancy, has died in the 12 months before possession proceedings started and there is no one living there who has a right to succeed to the tenancy.
Ground 8: - The tenant owed at least two months' rent if the tenancy is on a monthly basis or 8 weeks' rent if it is on a weekly basis, both when the landlord gave notice seeking possession and at the date of the court hearing.
(A prior notice ground means that the landlord must have notified the tenant in writing before the tenancy started, probably in the tenancy agreement itself, that he or she might seek possession on this ground).
Discretionary grounds on which the court may order possession are:
Ground 9: Suitable alternative accommodation is available for the tenant, or will be when the court order takes effect. The tenant's removal expenses will have to be paid.
Ground 10: The tenant was behind with his or her rent both when the landlord served notice seeking possession and when he or she began court proceedings.
Ground 11: Even if the tenant was not behind with his or her rent when the landlord started possession proceedings, the tenant has been persistently late in paying the rent.
Ground 12: The tenant has broken one or more of the terms of the tenancy agreement, except the obligation to pay rent.
Ground 13: The condition of the property has got worse because of the behaviour of the tenant or any other person living there.
Ground 14: 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
has been convicted of using the property, or allowing it to be used, for immoral or illegal purposes, or an arrestable offence committed in the property or in the locality.
Ground 15: The condition of the furniture in the property has got worse because it has been ill treated by the tenant or any other person living there.
Ground 16: The tenancy was granted because the tenant was employed by the landlord, or a former landlord, but he or she is no longer employed by the landlord.
Ground 17: 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.
The landlord must serve notice seeking possession of the property on the tenant before starting court proceedings. He or she must give the following amount of notice:
(a) for grounds 3, 4, 8, 10, 11, 12, 13, 15 or 17 - at least two weeks;
(b) for grounds 1, 2, 5, 6, 7, 9 and 16 - at least two months.
There is nothing to stop a landlord citing more than one breach of the tenancy agreement giving grounds for requiring possession, say ground 8 - the tenant owes at least two months' rent - and ground 9 - the tenant was behind with his or her rent both when the landlord served notice seeking possession and when he or she began court proceedings.
In less complicated cases involving assured shorthold tenancy agreements there is what is supposed to be a quicker method of gaining possession which may avoid the need for a court hearing. The 'Accelerated Possession Procedure' limits claims to possession and the cost of making the application and cannot be used, for example, to claim for rent arrears - although the small claims court can still be used for this.
The court will normally make its decision by looking at the written evidence provided by the landlord and the tenant - which means special care is needed in making sure all relevant evidence is included with the claim.
During the fixed term of an assured or shorthold tenancy agreement, the landlord can only seek possession if one of grounds 2, 8, 10 to 15 or 17 apply and the terms of the tenancy make provision for it to be ended on any of these grounds. When the fixed term of an assured tenancy ends, possession can be sought on any of the grounds.
When the fixed term of a shorthold tenancy agreement ends, the landlord does not have to give any grounds for possession.
by: Karl Hopkins
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