You may want to know:
What can I do if the tenant breaches the tenancy agreement?
Can I seek rental payment from the Guarantor?
How does the tenancy come to an end?
How to terminate an AST without a breach
What happens if I am happy for the tenant to stay after the tenancy expires?
What can I do if the tenant breaches the tenancy agreement?
Although tenancy agreements usually contain a provision, known as a forfeiture clause, which provides that the landlord can re-enter the property you are NOT actually entitled to simply re-enter the property and change the locks in order to gain possession. Instead, a court order will always be needed. This applies both during the term and following its expiry. Unless the tenant voluntarily surrenders the tenancy there are very strict procedures that must be followed in order to gain possession of the property.
If the tenant(s) are in breach of their tenancy covenants, most commonly by not paying the rent, then the landlord can serve a Notice of Seeking Possession as a precursor to court proceedings. This is known as a S8 Housing Act 1988 Notice (“Section 8 Notice”). Separate copies for use in England and Wales are available here:
S8 Housing Act Notice for England
S8 Housing Act Notice for Wales
Here is a template cover letter to send with either notice.
Care needs to be taken when completing the Section 8 Notice (s.8 notice); any inaccuracies could invalidate the notice. The s.8 notice has to set out the grounds on which the landlord is seeking to terminate the tenancy. The grounds are set out in Schedule 2 to the Housing Act 1988. Some of the grounds are mandatory, meaning that the court must grant an order for possession if the landlord can demonstrate the ground. The remaining grounds are discretionary, which means that if the landlord can demonstrate the ground, the court may grant an order for possession if it considers it reasonable to do so.
If the tenancy agreement provides for the rental payments to be paid monthly and there are at least two months’ rent outstanding then the s.8 notice will need to specify grounds 8, 10 and 11. These grounds should then be set out in full (word for word) in the notice (see our precedent above).
If, following the service of the s.8 notice, the tenant fails to pay the outstanding rent within 14 days, then possession proceedings can be commenced in the County Court.
Failure to complete the s.8 notice correctly is likely to invalidate it and any subsequent court possession proceedings. Therefore, it is advisable to use a proper standard form and to set out the information required.
Where the breach is for something other than non-payment of rent, you are advised to seek legal advice and assistance, as retaking possession is much more complex in these circumstances.
Can I seek rental payment from the guarantor?
If the tenant has provided a guarantor, and that guarantor has entered in to a guarantee agreement with the landlord to indemnify him against any losses arising from the tenant’s failure to comply with the terms of the tenancy agreement, then yes you can seek rental payments from that guarantor. You can request that the guarantor pays the arrears and he/she can be joined into any later court proceedings if payment is not received.
A ‘pre-action’ letter must be sent to the guarantor at the same time as a Section 8 Notice is sent to the tenant. A copy of the s.8 notice should be attached to the letter. Here is a template letter.
If possession is being sought due to non-payment of rent, and the guarantor then pays the arrears, you are unlikely to be awarded a possession order unless you can show a pattern of persistent non-payment of rent that is having a serious impact on you.
How does the tenancy come to an end?
As mentioned earlier, although the tenancy agreements contain a forfeiture clause you are NOT allowed to simply re-enter the property in order to gain possession. Unless the tenant voluntarily surrenders the tenancy, strict procedures must be followed in order to gain possession and a court order will always be needed.
Protection from Eviction Act 1977
It is a criminal offence to remove or exclude any occupier of residential premises without due process of law. In practice this means that the person seeking to recover possession must first serve notice that the occupier is required to leave and by what date.
If the tenant does not leave by the time the notice expires then the landlord must seek an order from the court for possession of the property. The court order will specific a further date by which the tenant must leave.
If the tenant does not leave by the date set out in the court order, the landlord must apply to court for the order to be enforced by the County Court Bailiff or High Court Sheriff under a ‘warrant’ or ‘writ’ of possession.
To be clear, at no point can the landlord itself re-enter the property if the tenant is still occupying it.
Similarly, the landlord cannot “harass” the occupier by, for example, cutting off the supply of water or electricity, changing locks, removing furniture or pestering the occupier. These are all criminal offences under the above Act.
Any person found guilty of an offence of unlawful eviction or harassment may be fined or imprisoned. They may also be ordered to pay civil damages to the tenant. The measure for those damages will be based on the difference in the value of the property with and without the tenant. The damages may also include additional compensation for assault, or damage to the occupier’s possessions.
How to terminate an AST without a breach
The only way to terminate an AST during its term is using the processes outlined above (section 8 notice) based on the tenant breaching the terms of the AST.
Otherwise, you must wait until the term expires, or is due to expire, by giving the tenant at least two calendar months’ notice under section 21 of the Housing Act 1988 (‘s.21 notice’)
When can I serve the s.21 notice?
This depends on whether the property is in England or Wales – see below.
When will the s.21 notice expire?
The termination date in the s.21 notice must be on or after the term expiry date stated in the AST. Only if the AST has been amended to contain a clause allowing for earlier termination by the landlord (such as a break clause) can the s.21 notice take effect before the expiry date (but note it cannot expire before the end of six months from the beginning of the AST in any event).
If there are specific terms in the AST regarding when and where notices can be served you are advised to take independent legal advice on the impact of these terms before attempting to serve notice. Such provisions are construed strictly by the courts and any failure to comply with them, no matter how small, can result in an invalid notice and considerable wasted cost and time.
For properties located in England
A s.21 Notice cannot be served within the first four months of a new tenancy, or the renewal of an existing tenancy, in England. The notice must be in the form prescribed by s.21 Housing Act 1988 (or in a form substantially to the same effect) if it relates to a tenancy beginning on or after 1 October 2015, as found here.
It should be sent with a cover letter, an example of which is here.
Before 1 October 2015, there was no requirement that notice was given in a prescribed form (although it had to be in writing).
A Section 21 notice in England can expire any time after the end of the fixed term provided the notice is served upon the tenant at least two calendar months beforehand.
It should also be remembered that in England Section 21 notices are only valid for 6 months after they are served.
For properties located in Wales
Notices in Wales can be served at any time after the tenancy has started although the form of notice that you need to use will depend upon whether you serve the notice during the term of the tenancy or after the term expiry date.
If you want to serve notice during the term of the tenancy agreement then you will need to serve notice under s.21(1)(b) Housing Act 1988. A Section 21(1) (b) notice can expire on or after the last day of the fixed term provided that it is served upon the tenant at least two calendar months beforehand. A section 21(1)(b) notice can only be used if term is still running.
If you want to serve notice after the term expiry date then you need to serve notice under s.21(4)(a) Housing Act 1988. A Section 21(4) (a) is intended to be used after the expiry of the tenancy (at which time the tenancy agreement becomes a periodic tenancy). A minimum two month notice period also applies. Again, individual cases can be affected by what the tenancy agreement states about expiry date.
This template notice contains wording suitable for both types of notice together with drafting notes – you just need to select the correct form of wording.
Here is a template cover letter to send along with the notice.
The date on which the notice will expire will depend upon when it is served.
How should I serve the s.21 notice?
Tenancy agreements often contain service clauses which refer to section 196 of the Law of Property Act 1925. This allows for valid service of the notice to be made by registered post (as in, special delivery or recorded signed for) or personal delivery to the tenant's property, but only when the AST explicitly states that service will be effective where it is done in accordance with section 196. Alternatively, service can be effected by other methods specified in the AST.
The AST and method of service used will determine when the notice is deemed to have been received by the tenant. If you do not allow sufficient time for service on top of the other requirements mentioned above the notice may not be considered valid by the courts.
Otherwise, a landlord is not required to serve a section 21 notice in any particular way. In the event that the tenant does not acknowledge service of the notice, the landlord must prove that the notice was in fact served.
Due to the risk of delay or the tenant refusing to sign for the notice sent by recorded signed for/Special Delivery, such service is only recommended as a back-up for another method of service, unless the AST provides for the service of notices by this method.
You should keep a detailed note of how and when the notice was served and details of any evidence that the tenant has acknowledged receipt as this information will be required in any application to the court for an order for possession from the court. To be clear, the onus is on you to show that the tenant has in fact received the notice and that the correct period of notice was given.
Example of service and expiry dates:
The original fixed term of the tenancy expired on 1 January 2019. Notice is served on 1 February 2017. The earliest date on which the notice could expire would, in theory, be on 1 March 2019.
However, legal commentary indicates that you should not include the dates of service and receipt when calculating periods of notice, meaning you need to add two more days -this would take you to 3 March 2019 but this is a Sunday, and so the safest earliest expiry date to specific in this example would be 4 March 2019. But please note that the expiry date can also be affected by what the tenant agreement states regarding when notices can expire.
What happens if I am happy for the tenant to stay in occupation after the tenancy expires?
If the AST is granted for an initial fixed term, at the end of the fixed term the parties can agree a new tenancy for a further fixed term, or they can let the tenancy run on as a statutory periodic tenancy under section 5(2) of the HA 1988. A statutory periodic tenancy arises automatically and will be on the same terms as the expired tenancy agreement save that rent period will depend on how rent has been paid before. For example, if the rent is paid monthly, the tenancy will be a monthly periodic tenancy.
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