 Residential Tenants Outstaying Their Welcome?
 James Woodhouse For many property owners, letting residential property presents a valuable opportunity for generating income in the way of rent. However, increasingly landlords are struggling to deal with tenants who have fallen behind with rent, or who remain in occupation after the lease term has expired.
The Housing Act 1988 introduced the concept of Assured Tenancies. The majority of residential tenancies in the private landlord sector created after 15 January 1989 are Assured Shorthold Tenancies (AST), which are a species of Assured Tenancy. ASTs are so designed to enable the landlord to recover possession at the expiry of the term (fixed-term tenancies) or upon service of adequate notice to quit (periodic tenancies). Any qualifying tenancies created after 28 February 1997 automatically become ASTs, unless the landlord has provided written notice to the contrary.
In order to recover possession as a result of the term having expired, the landlord must serve a notice in a prescribed form (known as a "Section 21 Notice") upon the tenant. As regards fixed-term tenancies, the landlord must give the tenant two month's notice to quit. The date by which the tenant is to vacate must not be earlier than expiry of the term. Court Proceedings cannot be commenced unless the landlord has first served a Section 21 Notice, and not before the notice period has expired. For that reason, a Section 21 Notice should be served as a matter of course at least two months before the expiry of any fixed term. As regards periodic tenancies, it is the Section 21 Notice itself which brings the term to an end by providing the tenant with at least 2 month's notice to quit. However, the Section 21 Notice must state a date which is "a last day of a period of the tenancy" in order to be valid. It should be pointed out that the landlord cannot rely on a Section 21 Notice if he has not complied with the statutory requirements in relation to protecting any deposit paid by using a Tenancy Deposit Scheme.
If the landlord wishes to 'evict' the tenant as a result of a breach of the tenancy agreement (usually non-payment of rent) a different statutory procedure applies. In rent cases, the landlord will need to wait until sufficient arrears has accrued (usually 2 months if rent is payable monthly) before serving a "Section 8 Notice" upon the tenant. The notice will threaten Court Proceedings unless the tenant pays the arrears within a specified period. It will be seen that, as with Section 21 Notices, Section 8 Notices are an important precursor to legal action and it is vital that the landlord has complied with the strict notice requirements if his Claim is to succeed.
Any attempt to regain possession of residential property without having first obtained a Court Order may amount to a criminal offence. It may also give rise to civil liability for unlawful forfeiture. It is important that landlords are aware of the procedures for obtaining possession and in most cases legal advice should be sought.
If you are a landlord likely to be affected by such circumstances, Charles Lucas and Marshall would like to hear from you. Please post your comments to james.woodhouse@clmlaw.co.uk, or contact us via twitter at http://twitter.com/clmlawbits.
For more information contact James Woodhouse on 01635 521212 or james.woodhouse@clmlaw.co.uk
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