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What Landlords Can Do If They Want a Tenant To Leave

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

A tenancy of someone’s home, starting on or after 28th 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.

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 either a certificate of posting
or recorded delivery. 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.

5.4.1 At the End of a Fixed Term Assured Shorthold Tenancy

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. This is called a statutory periodic tenancy. The
tenancy will continue to run on this basis until a new fixed term or periodic
tenancy is agreed or the tenant leaves or the court awards the landlord
possession. 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.

If the landlord does not want the tenancy to continue as a statutory
periodic tenancy the landlord will need to serve a section 21 notice to
commence proceedings for possession. The notice is known as a section
21 notice, as the landlord’s right to recover 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.

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 wrong
doing 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 either six months, or the fixed period, has expired, whichever is the
longer.

Notices to end an AST, if served during the fixed term, do not need to be on
a prescribed form and may be issued by letter providing that they comply
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).

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 at the beginning of the tenancy provided that the notice expires on
or after the tenancy has come to an end.

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 under the appropriate
regulations for tenancies created on or after 6 April 2007;

• that any licence required under the Housing Act 2004 (for
example a mandatory House of Multiple Occupation licence)
has been applied for or obtained.

If it is necessary to regain possession of the property quickly it may
be possible to use the accelerated possession procedure. If the above
requirements are met, and the section 21 notice and tenancy agreement
are available in writing, the accelerated possession procedure may be used.
Otherwise, the standard procedure must be followed, which will involve
a court hearing. The accelerated possession procedure may take up to six
- eight weeks after submitting the application to court, depending on the
case load 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. It follows that the accelerated
possession procedure cannot be used during that time either. For example,
if a tenancy has been granted to a new tenant for a period of two months
from 1st January and issue a section 21 notice on the second day of the
tenancy, it is possible to issue proceedings for possession shortly after the
fixed term has expired, i.e. in early March. However, when making the order
for possession the judge cannot order that possession be given any earlier
than 1st July. Realistically, this is not normally a problem as by the time
the court papers have been drafted and issued and gone through the court
system, the six month period will be nearing its end anyway.

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 s/he 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 6 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 tenancy.

Different rules apply for fixed term [see section 5.5.7.1] or periodic
tenancies [see section 5.5.7.2] but any notice must be in writing and cannot
be backdated.

5.4.2 At the End of a Fixed Term Assured Tenancy

The section 21 procedure does not apply, and the landlord can only bring
the tenancy to an end on certain grounds. Most landlords will need to take
legal advice before proceeding.

5.4.3 To End a Periodic Tenancy

Most landlords will need to take legal advice if the tenancy is an assured
periodic tenancy.

If the tenancy is a contractual periodic assured shorthold tenancy, the
landlord should follow any notice stipulations set out in the tenancy
agreement. The landlord may need to take legal advice before proceeding.

In the majority of cases in the private rented sector, a periodic tenancy will
be a “statutory periodic tenancy”, i.e. an assured shorthold tenancy that has
run on past its expiry date. In these cases, notices must be given in writing
and 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 11th of the month to the 10th
of the next month, the end of tenancy date in the notice must be the 10th
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.

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.

5.4.4 To End a Fixed Term Tenancy Before it is Due to Expire

There will be cases when a landlord has agreed a fixed term, but needs to
end the tenancy early. This might be because of a change in the landlord’s
circumstances, or because things are not working out with the tenant.
If a landlord wishes to obtain possession of the property during the fixed
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); and

• the tenancy agreement has a clause in it providing for this
(this is sometimes known as a re-entry or forfeiture clause,
even though forfeiture cannot be used for assured/assured
shorthold tenancies); or

• by activating a properly drafted break clause and then using
the section 21 procedure (assured shorthold tenancies only).
For break clauses, to be valid they must be available for use by
both the landlord and the tenant, not just the landlord alone.

Although a landlord can re-take possession if it is obvious that the tenant
has abandoned the property, in most cases the landlord will need to obtain           an order from the court. Evicting a tenant without a court order is a criminal
offence (with a very few exceptions).

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 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.

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 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 only for further and higher education providers.

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 to 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 8 relates to serious rent arrears and is the main ground 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 quarters’ rent is more
than three months in arrears; and

• if rent is payable yearly, at least three months’ rent is more
than three months in arrears.

If a tenant is able to reduce the rent arrears to below the relevant figure by
the date of the hearing the application will be dismissed. A landlord may
wish to consider using Ground 10 and 11 at the same time. Therefore if an
application on Ground 8 fails it will still be possible to seek the order on
the other grounds

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 to 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 when the order for
possession takes effect.

Ground 10 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 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, the ground can also be used if the tenant has
not taken such steps as he 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 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 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
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.

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. The Legal Services Commission, in conjunction with the
Court Service, now provides emergency legal advice and representation
at most courts for unrepresented tenants facing possession proceedings
based upon rent arrears. Therefore a landlord may find that they are at a
disadvantage if the tenant is represented and the landlord is not.