Guide to Tenancy Law for Landlords

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In 2006 the Law Commission published a draft Rented Homes Bill which, if it becomes law, will modernise the current system and make it easier for both landlords and tenants to understand. In August 2008 they published final proposals on better regulation of the private rented sector.

If the original tenancy started after March 1997, the tenancy will usually be Assured Shorthold. The Housing Act 1988 deregulated the private rented sector on 15 January 1989 by creating these types of tenancy.

The tenancy commenced on or after 28 February 1997.

The default type of tenancy is now an Assured Shorthold. An Assured tenancy can only be created if a landlord, or their agent, specifically states that the tenancy is to be Assured.

If the tenant was never given any agreement, in the absence of information to the contrary, they will have an Assured Shorthold tenancy.

How do I end a shorthold tenancy?

Shorthold tenancies can be fixed term or periodic. Since 28 February 1997, there has been no minimum term for shorthold tenancies. This means that they can be periodic from the outset, or, for example, the landlord may grant a tenancy for three months if they wish. However, the County Court cannot make a possession order take effect sooner than six months after the start of the original tenancy.

When a fixed term agreement ends, this does not automatically end the tenancy. A statutory periodic tenancy is automatically created if a fixed term tenancy ends and the tenants remain in occupation. The landlord must still give notice that they require possession of the premises. A landlord's automatic right to possession of a shorthold tenancy is derived from Section 21 of the Housing Act 1988.

Notice given during the fixed term.

The notice should be for a minimum of two calendar months. The notice must be in writing and should not normally require possession prior to the end of any fixed term. Some fixed term tenancy agreements contain a break clause that may allow a landlord to serve a Section 21 notice to expire before the end of the fixed term. You should seek legal advice if your tenancy agreement contains such a clause to ensure that it is valid.

Notice in this form can be given up until the last day of the fixed term.

Notice given during a statutory periodic tenancy.

The notice should be for a minimum of two calendar months. The notice should be in writing and should require possession after the last day of a rental period. If the rent is due in advance, the last day of a rental period is the day before the rent is due. For example if the rent is due every Monday, the date specified in the notice must be a Sunday. If the rent is due monthly on the 15th of each month, the notice must expire on the 14th. These requirements mean that the notice may have to be substantially longer than two calendar months, particularly where the rent is due monthly and the rent day has just passed.

The tenant has broken the terms of the tenancy agreement

If the tenant has broken the agreement then you can serve a Notice Seeking Possession. A Notice Seeking Possession is different from a Section 21 notice in a number of respects. The notice period is shorter. However, a landlord is required to give a reason why they want the tenant to leave. The court procedure for recovering possession by serving a Notice Seeking Possession can be more complicated than by serving a Section 21 notice. For this reason, many landlords choose to serve a Section 21 notice even though the tenant has broken part of the agreement, such as not paying the rent, because it is more straightforward. You should seek advice if you wish to serve a Notice Seeking Possession.

Accelerated Possession Procedure

If a Section 21 notice has expired and the tenant still hasn't moved out, a landlord must apply for a possession order to lawfully evict the tenant.

This is a court order telling the tenant to leave by a particular date. If you have served a Section 21 order it is very straightforward to obtain a possession order. Many landlords manage to complete the process themselves without the need for a solicitor. Most landlords use Accelerated Possession if they can. You have to meet certain criteria to be able to use this procedure - the tenancy must be Assured Shorthold, there must be a written tenancy agreement and a Section 21 notice must have been served.

You can get more information from the Court Service on form N5C. The claim form for possession using Accelerated Possession is form N5B. Please contact the County Court directly or via their website for current forms. Many landlords use the Accelerated Possession Procedure without needing to instruct a solicitor. Only landlords or solicitors can commence possession proceedings, letting agents are not permitted to do so.

The possession order has expired

Go back to the County Court and ask for a warrant to be issued. Court bailiffs will then arrange an eviction date. A fee will be payable. You cannot use a private bailiff.

If you change the locks before having lawfully obtained possession, you will be breaking the law. Unlawful eviction is a criminal and civil offence. The offence can be tried in the Crown Court where a prison sentence of up to two years and an unlimited fine can be imposed. Even if the Council choose not to prosecute, a tenant will be able to make a civil claim for damages. They may also apply for an injunction ordering you to readmit them to the property.

What if I just change the locks?

If you change the locks before having lawfully obtained possession, you will be breaking the law. Unlawful eviction is a criminal and civil offence. The offence can be tried in the Crown Court where a prison sentence of up to two years and an unlimited fine can be imposed. Even if the Council choose not to prosecute, a tenant will be able to make a civil claim for damages. They may also apply for an injunction ordering you to readmit them to the property.

If a landlord lives in the same building as their tenant, even if the accommodation is entirely self contained, the landlord will be classed as resident unless the accommodation was purpose built, such as a purpose built block of flats. The rules for ending tenancies are different for resident landlords. You should seek legal advice if this situation is applicable to you.

The information provided on this page is for information purposes only. Let Leeds accept no liability whatsoever for any actions any individual or organisation may choose to take as a result of visiting this web site and acting upon the information contained therein.

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