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5.4 What Landlords Can Do If They Want A Tenant To Leave

A tenancy of someone’s home, starting on or after 28 February 1997, will in most cases be an assured shorthold tenancy. Take advice at an early stage if there are any doubts about what type of tenancy is being terminated. The procedures for ending a tenancy are different, depending on the type of tenancy.

 

5.4.1 Service Of Notices

 

In most cases, the procedure will involve serving some kind of notice. The type and format of notice may vary depending on the circumstances of the case. Information about specific notices is given below, but as an introduction here are some general points about service of notice:

 

The tenancy agreement may specify the method and manner by which notices may be served and if the landlord does not follow the required method, the landlord’s claim for possession could be struck out by the court. Any specified method in the agreement should therefore be followed.

 

In the absence of a specified method of service, service by hand, preferably with a witness, should be followed and this should be backed up by an alternative method. The alternative could be by post, with a free of charge certificate of posting. Only use recorded delivery if you are confident the tenant will sign for the document because otherwise a failure could be proof they did not receive the notice (it may be a requirement of the tenancy to use recorded delivery so check first). At the time of making the application to court a landlord will be required to supply the court with information about the service of the notice.

 

If the notice is in the wrong form, or incorrectly served, it could mean that the landlord will lose the case. Take advice if unsure what to do.

 

Time should always be added onto any notice being given to allow for delivery of the notice by post or otherwise. Courts often look at court rules to decide how long a notice may take to arrive. For example court documents are deemed delivered the second business day after posting which means if posted on a Thursday they are not deemed delivered until the following Monday. It is good practice therefore to always allow a further four days onto any notice being served.

 

Where the tenancy is joint and several (multiple tenants named on a single tenancy agreement) a single notice containing all names should be served.

 

5.4.1.1 Agents Service

 

A letting / managing agent may serve any of the notices discussed below. The notice should be made out as being from the landlord and served by the agent. To make possession for the landlord smoother, the precise names as shown on the tenancy agreement (for example the landlord name) should be used exactly the same on the notice. This avoids confusion as to whom the notice is from.

 

5.4.2 Assured Shorthold Tenancies

 

For the remainder of this section, only the procedures for ending an assured shorthold tenancy will be discussed. Other types of tenancy will be discussed briefly in later sections of this chapter.

 

5.4.3 Serving Notice During The Fixed Term – No Fault

 

5.4.3.1 For Tenancies (Including Renewals) Granted BEFORE 1 October 2015

 

For an assured shorthold tenancy granted BEFORE 1 October 2015 and there has been no renewal after that date and if the landlord does not want the tenancy to continue beyond the fixed term where there is no fault (or grounds) being relied upon, the landlord will need to serve a section 21 notice and obtain an order from the court to bring the tenancy to an end. The notice is known as a section 21 notice requiring possession and the notice procedure is set out in section 21 of the Housing Act 1988. The notice must be served on the tenant at least two months before the landlord wants the tenancy to end although except for a break clause this can’t be before the last day of the fixed term.

 

A section 21 notice cannot be served before a tenancy has been granted.

 

If there is a break clause, it can be activated using a section 21 notice as long as the terms of the break clause are followed precisely and be at least two months in length. A landlord should not have a break clause without the tenant having the same right, or the landlord’s break clause could be invalid.

 

The section 21 procedure is considered to be a no-fault procedure as it is not necessary for the landlord to establish that there has been any wrongdoing by the tenant. The landlord only has to prove that the tenancy is an assured shorthold, that the appropriate notice has been validly served and that the fixed period, has expired.

 

A section 21 notice, if served during the fixed term, does not need to be on a prescribed form and may be issued by letter providing that the notice complies with the following rules;

the duration of the notice must be at least two months and the notice must not expire earlier than the fixed term of the agreement (it may expire on any given date after the end of the term). the notice must be given in writing

 

Most landlord associations, solicitors or legal stationery suppliers will have a standard preformed section 21 notice.

 

If a landlord is likely to require the property to be returned to them immediately after the fixed term expires, the section 21 notice can be served early into the tenancy (after any deposit has been protected) provided that the notice expires on or after the tenancy has come to an end.

 

5.4.3.2 For Tenancies (Including Renewals) Granted On Or After 1 October 2015 (Or Any Tenancy From 1 October 2018)

 

Where an assured shorthold tenancy has been granted on or after 1 October 2015 including a renewal or, for every assured shorthold tenancy (including existing) from 1 October 2018, the rules for serving a section 21 notice in England are different.

 

If the landlord does not want the tenancy to continue beyond the fixed term and there is no fault (or grounds) being relied upon, the landlord will need to serve a prescribed section 21 notice and obtain an order from the court to bring the tenancy to an end.

 

The notice is known as a section 21 notice seeking possession and the notice is a special prescribed form which must be precisely used. The procedure to follow is as set out in the amended section 21 of the Housing Act 1988.

 

The notice may not be served until at least four months from the original tenancy has passed and the date the tenant is asked to leave must be at least two months from when the notice is deemed served. The date the notice asks the tenant to leave is known as the expiry date of the notice. The four month rule (where service is prohibited) does not apply to a renewal (where the same tenant(s) are given a new tenancy for the same property by the same landlord).

 

If there is a break clause, it can be activated using a section 21 notice as long as at least four months from the original term has passed before being served and as long as the terms of the break clause are followed precisely. The notice must be at least two months in length. A landlord should not have a break clause without the tenant having the same right, or the landlord’s break clause could be invalid.

 

The section 21 procedure is considered to be a no-fault procedure as it is not necessary for the landlord to establish that there has been any wrongdoing by the tenant. The landlord only has to prove that the tenancy is an assured shorthold, that the prescribed notice has been validly served and that the fixed period has expired.

 

The prescribed section 21 notice is titled “Form 6A” and most landlord associations, solicitors or legal stationery suppliers will be able to provide the prescribed form.

 

Once served, the section 21 notice must be acted upon (by seeking a possession order through there courts) within six months of its service. Otherwise, a new one will be required to be served.

 

5.4.4 To End A Periodic Tenancy – No Fault

 

At the end of a fixed-term AST, if the landlord does nothing and the tenant stays on in the property, the tenancy will automatically run on from one rent period to the next on the same terms as the preceding fixed-term assured shorthold tenancy. Where there is no term in the tenancy, this is called a statutory periodic tenancy, otherwise it will be a contractual periodic tenancy. The tenancy will continue to run on this basis until a new fixed-term tenancy is agreed, the tenant leaves or a bailiff enforces a possession order obtained through the court by the landlord. Some landlords think that if assured or assured shorthold tenants stay on after the end of the fixed term they are unauthorised ‘squatters’. This is not the case, the tenancy continues by operation of law, and they are still tenants and are legally entitled to be there.

 

A section 21 notice cannot be served before a tenancy has been granted including if the tenancy is periodic from the outset.

 

5.4.4.1 For Tenancies (Including Renewals) Granted BEFORE 1 October 2015

 

For an assured shorthold tenancy granted BEFORE 1 October 2015 and there has been no renewal after that date and where the assured shorthold tenancy is periodic, the landlord wants possession and is not relying on any grounds, a section 21 notice must be given in writing and it must:

state that possession is required under section 21 of the Housing Act 1988 have a notice period of at least two months and expire on the last day of a period of the tenancy.

 

For example, if the rent period is from the eleventh of the month to the tenth of the next month, the end of tenancy date in the notice must be the tenth of the month. If the tenancy is paid weekly the proper notice periods end in the same way at the end of a period for which rent is paid. For example, if the rent is paid every Monday for the period through to the following Sunday, the notice must expire on a Sunday.

 

If the rental periods are greater than two monthly (for example a quarterly or six monthly rent) the notice must be at least the length of a rental period up to a maximum of six months notice.

 

Periodic notices may also contain a ‘savings clause’, referring to the last day of a period of the tenancy as well as, or instead of, a specific date. Such a clause may correct an incorrectly dated notice, provided that the savings clause is clear and precise. A savings clause cannot, however, correct all faults in the notice.

 

There has been a recent court of appeal ruling (Spencer v Taylor [2013] EWCA 1600) which provides that where a tenancy is statutory periodic after the fixed term has ended, a section 21(1)(b) notice can be used instead. This is the notice discussed earlier which can be given during the fixed term and does not need to expire on any particular date. However, Spencer does not apply to a contractual periodic tenancy (where the tenancy contains a clause continuing the tenancy) nor other types of contractual periodic tenancy such as a verbal agreement with no fixed term initially. The advice given here applies to ‘all’ periodic tenancies that are assured shorthold and so is the safest route to take. If in doubt, seek advice.

 

5.4.3.2 For Tenancies (Including Renewals) Granted On Or After 1 October 2015 (Or Any Tenancy From 1 October 2018)

 

Where an assured shorthold tenancy has been granted on or after 1 October 2015 including a renewal or, for every assured shorthold tenancy (including existing) from 1 October 2018, the rules for serving a section 21 notice in England are different.

 

Where the assured shorthold tenancy is periodic and the landlord wants possession and is not relying on any grounds, a section 21 notice must be given. The notice to be used is the same prescribed form as is used for the fixed term tenancy discussed earlier.

 

For tenancies granted before 1 October 2015, it was the case that any section 21 notice served during a contractual periodic tenancy had to expire “after the last day of a period of the tenancy”. That rule has been removed for these 1 October 2015 onwards tenancies. For these tenancies, a simple two months’ notice plus time for service (recommended four days) is all that is needed. The notice may expire on any date including a Sunday.

 

If the rental periods are greater than two monthly (for example a quarterly or six monthly rent) the notice must be at least the length of a rental period up to a maximum of six months.

 

The prescribed section 21 notice, is titled “Form 6A” and most landlord associations, solicitors or legal stationery suppliers will be able to provide the prescribed form.

 

In most cases, the section 21 notice must be acted upon (by seeking a possession order through the courts) within six months of its service. If the rental period is greater than two monthly (quarterly rent for example) the notice must be acted upon within four months of its expiry.

 

5.4.5 Court Order After Service Of A Section 21 Notice

 

After a section 21 notice has been served and it has expired (the date in the notice asking the tenant to vacate has passed), The requirements for an order for possession under section 21 are:

 

  • that the tenancy is an assured shorthold tenancy that any fixed term of the tenancy has expired
  • that a notice properly drafted in accordance with the provisions of section 21 has been served on the tenant and has expired
  • that any deposit paid was duly protected within 30 days under the appropriate regulations for tenancies created on or after 6 April 2007 (or returned in full prior to service) that any licence required under the Housing Act 2004 (for example a mandatory House of Multiple Occupation licence) has been applied for.

 

And, for tenancies (including renewals) granted on or after 1 October 2015 the following must also apply in addition to the above:

 

at least four months from the original tenancy had passed before the notice was served court proceedings were commenced within six months of service of the notice (or four months of expiry where the rental period exceeds two monthly)

 

the ““How to rent: the checklist for renting in England” was given under the tenancy before the notice was served

 

any energy performance certificate and gas safety record was given before occupation of the property (it may be acceptable that these are simply given before the section 21 was served) none of the retaliatory eviction provisions are satisfied (for which see later)

 

If the tenancy is evidenced in writing and the above requirements have been met, it may be possible to use the accelerated possession procedure. Otherwise, the standard procedure must be followed, which will involve a court hearing. The accelerated possession procedure may take up to six to eight weeks after submitting the application to court, depending on the caseload of the court at the time.

 

The court cannot grant an order for possession during the first six months of the tenancy using the section 21 procedure. This six-month ‘moratorium’ only counts from the first tenancy agreement with that particular tenant for a particular property, not any subsequent agreements. But if a tenant is renting a room in a shared house and moves to another room, this will count as a new tenancy and the six-month moratorium will apply, even though he or she may have lived in another room in the house for some time.

 

It is not uncommon for landlords to think that they cannot issue an assured shorthold tenancy for less than six months. This is not true, it is just that, it is not possible to get a Court to order repossession during the first six months of the first tenancy.

 

5.4.6 To End A Fixed-term Or Periodic Tenancy Where There Are Grounds

 

There will be cases when a landlord has agreed a tenancy and things are not working out with the tenant. If a landlord wishes to obtain possession of the property during the fixed term or periodic term of an assured or assured shorthold tenancy, they can only seek possession if one of the grounds for possession in Schedule 2 of the Housing Act 1988 (as amended) applies (see below).

 

If the tenancy is still in the fixed term, there must be a clause in it providing for possession to be sought on one of the grounds (this is sometimes known as a re-entry or forfeiture clause, even though forfeiture cannot be used for assured/assured shorthold tenancies).

 

The grounds for possession are divided into mandatory grounds (upon which the court must order possession if the landlord proves the allegation) and discretionary grounds (upon which the court may order possession if the allegations are proved and if the court considers it reasonable to make the order). The grounds must be specified in the notice, which must be a section 8 notice. The notice is in a prescribed form. Section 8 of the Housing Act 1988 also specifies what minimum notice period must be given – and this depends on the ground(s) being used. Many landlords will need to take advice about service of notices and termination using section 8, until they become familiar with the procedure.

 

A landlord will have to consider what it is that they wish to achieve by commencing legal proceedings to end the tenancy. They will have to take into account the time, effort and cost involved and also if they have used all other methods of resolving a problem.

 

It may be beneficial to obtain a possession order, even on discretionary grounds, as the terms of any order may assist the landlord to influence a tenant to change their behaviour or to pay the rent arrears by instalments or maintain the garden or whatever has been the problem.

 

Because the grounds of a section 8 notice needs to be proven in court, it is good practice to consider serving a section 21 notice (discussed earlier) in addition to a section 8 notice. This provides the landlord with a fall back position should the section 8 notice fail.

 

Mandatory Grounds

 

Grounds 1-5 of the Housing Act 1988 require the landlord to serve notice prior to the commencement of the tenancy, warning the tenant that possession might be sought for the reason stated in that ground. In some circumstances the court may decide to waive the requirement of notice if it is just and equitable to do so. Grounds 1-5 are:

 

Ground 1 can be used if the property to be repossessed was, or after the let is intended to be, returned to the landlord as their own home. For this ground to be successful the landlord must have notified the tenant in writing before the tenancy started, that he or she intended one day to ask for the property back on this ground.

 

Ground 2 relates to a lender’s right to possession. If the property is subject to a mortgage the landlord will often be required to serve this notice on the tenants.

 

Ground 3 requires that the fixed term is less than eight months and the property has been let as a holiday home within the preceding 12 months.

 

Ground 4 is for further and higher education providers only.

 

Ground 5 is where the dwelling is owned for the purposes of a minister of religion to better carry out their duties and the residence is needed for such a purpose.

 

The remaining mandatory grounds, grounds 6-8, do not require notice to be given in advance of the start of the tenancy.

 

Ground 6 relates to recovery of possession when the landlord needs to carry out substantial building works. It cannot be used by a landlord against a tenant who was already in the property when the landlord bought it. This is particularly important as a tenant may in fact be a regulated tenant and be protected by the provisions of the Rent Act 1977 rather than the Housing Act 1988. A landlord who purchases a property should check the date that the person moved into the property and not just accept that a shorthold contract supplied by the seller is in fact a shorthold.

 

Ground 7 can be used to recover possession after the death of the tenant where the tenancy has devolved under their will or intestacy and the tenancy was periodic.

 

Ground 7A contains five ‘conditions’. A landlord is entitled to possession if any one or more of the conditions are proven.

 

condition 1 – the tenant (or a person visiting) has ben convicted of a serious offence in, or in the locality of the dwelling-house or the offence was committed against the landlord or another person residing in the premises

 

condition 2 – a court has found that the tenant (or person visiting) has breached an injunction under the Anti-social Behaviour, Crime and Policing Act 2014 and the breach occurred in the locality of the dwelling or against the landlord or other persons residing

 

condition 3 – the tenant (or person residing) has breached a criminal behaviour order in the locality of the dwelling or against the landlord or other persons residing condition 4 – the dwelling is or has been subject to a closure order and access was prohibited for more than 48 hours condition 5 – the tenant has been convicted under a number of other specified offences.

 

Ground 8 relates to serious rent arrears and is one of the main grounds used by landlords of Housing Act 1988 tenancies seeking possession for rent arrears. Both at the date of the service of the notice under section 8 of this Act and at the date of the hearing

 

if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid if rent is payable monthly, at least two months’ rent is unpaid if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears or if rent is payable yearly, at least three months’ rent is more than three months in arrears.

 

Discretionary Grounds

 

The court must consider the landlord’s claim and, if proved, the judge has the power to make an absolute order or a suspended order, which is usually with conditions. In some cases the court may decide to adjourn the proceedings on terms that the tenant is directed to comply with conditions. The terms of the adjournment may allow the landlord to bring the matter back to court within a given period. To gain possession the landlord will have to prove the facts and that it is reasonable for the court to award possession on the facts of the case.

 

Grounds 9-17 are all discretionary grounds. They refer to ‘dwelling-house’ but this expression would include a flat.

 

Ground 9 can be used where suitable alternative accommodation is available for the tenant or will be available for him or her when the order for possession takes effect.

 

Ground 10 is commonly used alongside ground 8 and can be used where some rent that is lawfully due from the tenant:-

is unpaid on the date on which the proceedings for possession are begun and except where subsection (1)(b) of section 8 of the Housing Act 1988 applies, was in arrears at the date of the service of the notice under that section relating to those proceedings.

 

Ground 11 is also commonly used alongside grounds 8 and 10. It can be used in cases where the tenant has persistently delayed paying rent which has become lawfully due whether or not any rent is in arrears on the date on which proceedings for possession are begun.

 

Ground 12 can be used where any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.

 

Ground 13 is for use where the condition of the dwelling-house (or any of the common parts if the dwelling is part of a larger building) has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any other person residing in the dwelling-house. In the case of an act of waste by, or the neglect or default of, a person lodging with the tenant or a sub-tenant of his or hers, the ground can also be used if the tenant has not taken such steps as he or she ought reasonably to have taken for the removal of the lodger or sub-tenant.

 

Ground 14 can be used in cases of anti-social behaviour committed by the tenant or any other person living with the tenant or visiting the property if that person:

 

has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality or, has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwellinghouse, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions or, has been convicted of :-

  • using the dwelling-house or allowing it to be used for immoral or illegal purposes or
  • an indictable (Crown Court) offence committed in, or in the locality of, the dwelling-house.

 

Ground 14ZA is for use where the tenant or an adult residing in the dwelling-house has been convicted of an indictable offence which took place during, and at the scene of, a riot in the United Kingdom.

 

Ground 15 can be used where the condition of any furniture provided for use under the tenancy has, in the opinion of the court, deteriorated owing to ill-treatment by the tenant or any other person residing in the dwelling-house. In the case of ill-treatment by a person lodging with the tenant or by the tenant’s sub-tenant, the tenant has not taken reasonable steps for the removal of the lodger or sub-tenant.

 

Ground 16 relates to where the dwelling-house was let to the tenant in consequence of his employment by the landlord seeking possession or a previous landlord under the tenancy, and the tenant has ceased to be in that employment.

 

Ground 17 can be used where the tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by either the tenant or a person acting on the tenant’s instigation.

 

A landlord may use several grounds on an application for possession if several grounds apply to the facts of a case. For example, it is possible (and common) to use grounds 8, 10, and 11 at the same time. There is a good reason for specifying all grounds that apply. If a tenant reduces the rent arrears to below the specified sum at the date of the hearing, and the landlord has only pleaded ground 8, the claim could be dismissed. However, if the alternative grounds also apply, the court can still make an order for possession, which may be absolute or suspended.

 

As discussed earlier, the time required to be given before court proceedings can commence on a section 8 notice varies considerably depending on each particular ground. The most common grounds – 8, 10 and 11, require at least 14 days to be given although it is always best to allow 18 days to include service time of the notice.

 

If one of the mandatory grounds is used and proven then the judge must make an order for possession. The date of possession should normally be 14 days from the date of the hearing but the judge has discretion for it to be postponed to a period not longer than six weeks after the making of the order.

 

A landlord will not necessarily know if a tenant will be represented at court, as they may not seek advice until shortly before the hearing. Therefore, any landlord who is contemplating taking legal proceedings should seek advice before doing so.

 
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