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Are you a landlord or considering whether to become one?
If so, there are several factors you must consider to ensure that you do not encounter problems when seeking possession of your property, should the need arise. We have come across many situations where landlords have failed to take into consideration all the requirements of the legislation governing possession claims.
What is an Assured Shorthold Tenancy?
An Assured Shorthold Tenancy (AST) is the most common type of tenancy arrangement for privately rented residential properties.
An AST is a legal arrangement that allows a tenant to have exclusive possession of a landlord’s property for a specified period in exchange for the payment of rent.
ASTs can be granted for any period as agreed by the landlord and tenant, but they are usually for periods of 6 months to a year. After the fixed term of the tenancy has ended, the AST continues as a periodic tenancy running month-to-month. This means that the tenancy can be terminated (unless the landlord decides to grant a new AST with another fixed term) by serving the requisite notice to the tenant to bring it to an end.
Seeking Possession
A landlord is able to regain possession of their property from a tenant under an AST using the Section 21 accelerated possession procedure. This procedure can be used for ASTs where certain conditions are met.
The Section 21 procedure is governed by the Housing Act 1988 and allows a landlord to evict a tenant without having to prove any fault on the part of the tenant. However, in order to follow the Section 21 procedure, the landlord must have provided the tenant with specific documents and information.
A landlord is unable to serve a Section 21 Notice within the first 4 months of the tenancy commencing if the tenancy began after 1 October 2018.
First Tenancy Agreement
If there was a written Tenancy Agreement between the landlord and tenant, this should be included in the application for possession under Section 21. This must be the first tenancy agreement, and all subsequent agreements should be in writing. The Tenancy Agreement should be in its completed form and signed by both the landlord and tenant.
Energy Performance Certificate (EPC)
A landlord must provide the tenant with a valid EPC at the time of the tenancy. The landlord must give this to the tenant before the tenancy begins, starting from 1st October 2015.
If a landlord is seeking possession under the Section 21 accelerated possession procedure, the Court will want to see that the landlord served a valid EPC on the tenant before they moved into the property. A landlord should show service of a valid EPC and keep evidence of this.
Gas Safety Certificate
If the property has gas supplied to it, the landlord must serve a valid Gas Safety Certificate (GSC) on the tenant before the tenancy begins.
Where there is no valid GSC at the commencement of the tenancy (for tenancies entered into after 1st October 2018), the landlord will not be able to obtain possession of the property. Proof of service should be retained by the landlord.
It is also a requirement that a landlord obtains a valid Gas Safety Certificate every year during the term of the AST and ensures these are kept up to date. Sanctions can be imposed if a landlord fails to do so. The Court will want to see evidence that the tenant was served with a valid Gas Safety Certificate when the Section 21 Notice is served.
How to Rent: The Checklist for Renting in England Guide
The tenant must also be served with the “How to Rent: The Checklist for Renting in England” Guide before the tenancy begins. Proof of service should be retained by the landlord.
Failure to Serve Documents
If the landlord fails to serve the EPC and/or the Guide on the tenant before the commencement of the tenancy, it is possible to serve these two documents after the tenancy has commenced—unlike the GSC, which must be provided at the start of the tenancy. If the GSC was valid but not served on the tenant, it can be served before the Section 21 Notice is issued. However, a Section 21 notice will be invalid if these steps are not taken before the notice is served. Serving these documents at the same time as the notice will make the notice invalid.
Deposits
If the tenant provided a deposit at the beginning of the tenancy, it must be protected in a Tenancy Deposit Protection Scheme. This has been a requirement for many years now and applies to tenancy agreements entered into as far back as 2007.
The landlord is obligated to register the deposit in a Scheme. It is also required that the landlord provides the tenant with certain Prescribed Information as per The Housing (Tenancy Deposits) (Prescribed Information) Order 2007.
The landlord has 30 days from receiving a deposit to provide the tenant with the Prescribed Information. Please click here for the required Prescribed Information.
If the landlord has not protected the tenant’s deposit, the Court, if asked to do so, may order the landlord to pay the tenant between 1 and 3 times the deposit as compensation for the landlord’s failure.
If the tenant paid a deposit before 6 April 2007, the deposit does not need to be protected. However, if the landlord wants to seek possession under Section 21, they must have protected the deposit in a Scheme and provided the Prescribed Information. If the deposit is protected late, the landlord will need to return the deposit and serve the Prescribed Information late before serving notice under Section 21.
Serving Notice
The landlord must serve the Notice by completing Form 6A. The Notice must be validly served on the tenant, and evidence of service should be provided. The best way to serve the Notice is to physically give it to the tenant or leave it at the property address. Service is also valid by first-class post under the Court rules.
Once a valid Notice has been served on the tenant, possession proceedings must be commenced within 6 months of serving Form 6A. The Notice gives the tenant at least 2 months’ notice to vacate the property, and provision for service of the notice must also be provided outside of the 2-month notice period.
Renters’ Rights Bill
The Government has been discussing changes to the way the Section 21 procedure will work, with new legislation aimed at enhancing rights and protections for renters. The Conservative government introduced the Renters Reform Bill, but it was not passed through Parliament. Since the Labour government came to power, it has announced its long-awaited plans to reform rental property management in England through the Renters Rights Bill.
When the Bill is passed through Parliament, it will remove Section 21 repossessions from the private rented sector, and landlords will no longer be able to rely on “no-fault eviction.” Instead, they will have to prove one of the grounds as provided in the Bill to obtain possession of a property let under an AST.
Please click here to read the White Paper of the Renters Rights Bill.
Although it is still unclear what will be introduced, here are some of the key factors that are likely to appear:
- Abolition of Section 21
The Bill will remove Section 21 possession claims from the private rented sector. While this has been a central focus of the government, it is only a small percentage of tenants who face eviction via the Section 21 process. Landlords will be required to provide clear grounds for taking possession to reclaim their property when needed. - Notice Periods
Notice periods for tenants will also change, giving tenants more power to end tenancies early with 2 months’ notice. This aims to address issues with bad landlords and poor property conditions, but there is a balance to be struck, particularly in student lets where landlords may struggle to relet a property if a student gives 2 months’ notice and vacates. - Decent Homes Standard
A new Decent Homes Standard will be introduced for the private rental sector. This aims to reduce poor-quality rental homes that tenants are being asked to occupy. All privately rented properties will need to meet specific safety and security standards. - Enhanced Tenant Rights and Protections
Tenants will gain the power to challenge unreasonable rent increases, and rental bidding wars will be prohibited. Legislation will also make it easier for tenants to house pets with landlord approval, which cannot be unreasonably withheld. Additionally, insurance requirements may be introduced. - Awaab’s Law
Landlords will be required to investigate and fix reported health hazards within specific timeframes, improving living standards in rental homes. This law will further strengthen protections against retaliation evictions, where landlords issue possession proceedings instead of resolving dilapidations. - Creating a Digital Database
A comprehensive database will be established to provide information for landlords, tenants, and local authorities, promoting transparency and compliance in the private rental sector. - Property Ombudsman
A new Property Ombudsman will be introduced to offer a fair and impartial resolution process for disputes, aiming to avoid expensive Court proceedings. - Anti-Discrimination
Legislation will make it illegal for landlords to discriminate against tenants receiving benefits or with children living in the property. - Local Authority Powers
Local authorities are likely to gain increased enforcement powers to identify and penalize bad landlords, and they will be able to implement certain measures.
Section 8
Section 8 of the Housing Act 1988 is another way for landlords to obtain possession of a property. A landlord must prove that one of the grounds under Section 8 applies to the tenant in order to regain possession. Some of the grounds a landlord can rely on
are:
- The landlord wishes to occupy the property as their main dwelling.
- The tenant does not have a right to rent.
- The tenant is in rent arrears.
- The tenant has died.
There are both discretionary and mandatory grounds for claims under Section 8, and these should be considered on a case-by-case basis. Click here to see the grounds under Section 8.
There is ongoing debate about whether reform of the sector is needed, and some argue it is long overdue. However, it’s worth noting that the majority of landlords provide a good service to their tenants. The private rented sector currently offers the least affordable, poorest-quality, and most insecure housing of all tenures, so there is a balance to be struck.
Disclaimer
This information is for general information purposes only and does not constitute legal advice. The writer has also expressed some views, which do not amount to legal advice. It is recommended that specific professional advice be sought before acting on any of the information given.
Please contact us for specific advice and discuss matters in more detail with the dispute resolution department and our landlord and tenant experts.
