TENANTS
Introduction for Tenants
Almost five million households rent their own homes in
this country, of which 2.2 million rent from private sector landlords. With house
prices gradually on the rise in the UK, an increasing number of people are choosing
to rent their own homes, and putting off a move into owner occupation until later
years. Government now believe that the private rented sector (PRS) is key to easing
Britain's current housing crisis, and in helping to develop new housing in both
rural and urban areas.
Tenancy Agreements
A written tenancy agreement should be prepared before
every letting. The agreement describes the key aspects of the letting (name
and address of the landlord and tenant, the rent etc.) and sets out the main obligations
of each party
Although the default tenancy for private sector residential
lettings is the assured shorthold tenancy, there are several different other types
of tenancy that can arise:
- Resident landlord tenancy
- Company tenancy (where the tenant is a company or organisation)
- Common law tenancy (tenancies excluded from Housing Act cover)
- Mixed Use tenancies (where the tenancy is for both residential and business use
Assured and Assured Shorthold Tenancies
There are two main types
of tenancy agreements: Assured Shorthold Tenancies and Assured Tenancies. Assured
Tenancies are often referred to as ‘Full’ or ‘Ordinary Assured Tenancies’.
Both these types of tenancy
were introduced to promote lettings and allow landlords to charge the full market
rent. The key difference between the two types of tenancy is the legislation regarding
the landlord regaining possession of the property.
Rent
The rent will normally be agreed at the beginning of the
tenancy, and defined in the tenancy agreement. Although a landlord is allowed
to increase the rent either using a rent increase clause defined in the tenancy
agreement (Section 13 shown at the bottom of the page), or by mutual agreement,
there is a rent increase procedure that applies otherwise, for assured and assured
shorthold tenancies.
Rent is the money paid to your landlord in return for
the right to occupy his property. It can be paid weekly, fortnightly or monthly,
as agreed between your landlord and yourself.
If you pay your rent weekly you are entitled to a rent
book, this must have the name and address of your landlord or agent on it and it
must be provided by them
IF you have an assured or assured shorthold tenancy you
must agree a level of rent at the start of the tenancy as this level cannot be changed
during the fixed term of the agreement. In the case of an assured shorthold tenancy
the rent must be set at a market level.
Once the fixed term comes to an end the landlord may wish
to increase the rent. In order to do this he must give you a months notice and serve
you with a Section 13 Notice which states:
- The proposed new rent
- The date it should take effect
- Your rights as a tenant in relation to the procedure
Repairs
Generally speaking, the landlord is responsible for major
repairs to the structure and installations, while the tenant is responsible for
minor interior repairs and decoration. The tenancy agreement should set out who
is responsible for what. Be aware, however, that landlords can't get out of their
responsibilities by adding a clause into the tenancy agreement that says they don't
need to carry out repairs, or that the tenant will have to pay for any repairs that
need done. These are unfair terms, and will not be legally binding.
Possession Orders
An
Assured Shorthold
Tenancy
entitles the landlord to a possession order immediately after the initial agreed
period, which is usually for six months. The landlord is therefore able to evict
the tenant after the initial fixed term without a legal reason. If this is the case
and the landlord does not wish to renew the tenancy then they are obliged to give
at least two months' notice to end the tenancy which will incur in the tenant receiving
a Section 21 as explained at the bottom of the page.
However, if both the tenant
and landlord are happy with the agreement another tenancy can be agreed, for a new
fixed period.
An
Assured Tenancy
is considered to give the tenant more security, as after the agreement has
ended the tenant can remain in the property until the landlord obtains an order
of possession from the courts. The landlord needs to prove to the court the grounds
for repossession, for example, the tenant has missed rent payments, or the terms
of the agreement have been disregarded.
The landlord is required
to inform the tenant in writing if they are to seek possession of the property through
a court order. The tenant is not expected to move out of the property until an order
has been issued by the courts. When the tenant is issued with an order they are
required to leave the property by the date shown on the court order.
FACT SHEETS :
Claims for Possession: The Section
8 Notice
There are two main routes for obtaining possession of
assured and assured shorthold tenancies:
- Section 8 route
- Section 21 route
The purpose of this fact sheet is to briefly explain the
Section 8 route and how to complete the corresponding notice.
Background:
Where a landlord wishes to get possession from an assured
(or assured shorthold) tenant before the fixed term has come to an end (e.g. due
to default by non-payment of rent), he must serve notice of his intention to seek
possession.
This procedure and notice operate under Section 8 of the
Housing Act 1988, and, for this reason, we refer to it as the
Section 8 route and Section 8 notice
respectively.
Briefly, the requirements of Section 8 are:
- the landlord or, in the case of joint landlords, at
least one of them, has served on the tenant a notice in accordance with this section
and the proceedings are begun within the time-limits prescribed in the Act and stated
on the notice
- the notice must be given in the prescribed form
- the notice must specify grounds why the landlord requires
possession.
The Act provides 17 grounds which a landlord may
use to recover possession under Section 8. The landlord is required to specify in
the notice which ground he intends to use, and also to give particulars of the ground
which applies, to support his claim.
End of Tenancy:
If the tenancy is an assured shorthold tenancy, and the
landlord requires possession at the end of the tenancy under Section 21 of the Housing
Act (the Section 21 route), Section 8 does not apply to these cases (unless there
are other grounds such as rent arrears) and you should use the Section 21 route
Where both routes apply (say, for example, where the tenancy
is at an end and there are also rent arrears), then the Section 21 route is generally
preferred as it is simpler and often quicker.
Tenant Default:
Generally, the Section 8 Notice is used where there is
some default on the part of the tenant. The most common type of default during the
term of the tenancy will be non-payment of rent, but any breaches of the terms of
the tenancy agreement can also precipitate possession proceedings (e.g. damage to
the property, nuisance to neighbours etc.) using this route. The court will require
that the landlord, or his agent, is able to show adequate evidence or proof of the
default before it will order the tenant to move out of his rented home.
It is important, therefore, when using the Section 8 route,
for the claimant to understand clearly the different grounds and which will apply.
Some grounds require that the court automatically award possession if the ground
is proven, whereas, in others, the court may exercise its discretion. In rent arrears
cases, it is normally straightforward to prove default (by supplying a rent schedule
detailing the missing payments) whereas in other cases (damage or noise nuisance),
it will be important to show that the tenant is in breach of his tenancy agreement,
and carefully record the damage or complaint in the possession claim.
Grounds for Possession:
The Housing Act 1988 defines 17 grounds that the landlord
may invoke to recover possession of his property.
These grounds are laid down in Schedule 2 of the Act.
When claiming possession under Section 8, it is possible and, in many cases, advisable
for the claimant to cite more than one ground in his claim.
Some of the grounds are mandatory, which means that if
a landlord proves that one of the grounds applies the court has no choice but to
award him possession. The other grounds are discretionary, and the court will only
award possession if it is reasonable to do so. Some of the mandatory grounds, called
'prior notice' grounds, can only be used if the landlord informed the tenant in
writing before the tenancy started that he intended one day to ask for his property
back using those grounds.
a. Non Payment of Rent
For rent arrears, the landlord is relying on either one
or a combination of grounds 8, 10 and 11.
- Ground 8: that the tenant owed at least
two months' rent (in the case of a monthly tenancy) both when the landlord served
notice that he wanted possession and still owes two months' rent at the date of
the court hearing. If the rent is payable weekly, quarterly or yearly the ground
requires that there are rent arrears of eight weeks, three months and six months
respectively.
- Ground 10: that the tenant was behind
with his rent when the landlord served notice that he wanted possession, and when
he began court proceedings
- Ground 11: that, even if the tenant was
not behind with his rent when the landlord started possession proceedings, he has
been persistently behind with his rent.
(This is a summary - the full wording of each Ground
is given in The Housing Act 1988).
Ground 8 is a mandatory ground and thus the most powerful
ground to use; the court must grant possession if this ground is proved. However,
the drawback with relying on this ground alone is that the tenant can pay off part
of the arrears shortly before the hearing, which means the ground can no longer
be proved and thus the possession proceedings will have to be abandoned.
It is, therefore, common practice to cite multiple grounds
of possession for rent arrears (i.e. grounds 8, 10 & 11) if applicable although
it may not be possible to rely on ground 8 if the rent arrears have not accrued
to a sufficient extent when the notice was served. If ground 8 is not yet applicable,
due to insufficient arrears, the landlord will then have to make a decision between
starting the possession proceedings under the discretionary grounds 10 & 11
(where the court may order possession if it is 'reasonable' to do so), or incur
a further delay until ground 8 will apply (where the court must order possession).
Common practice is to wait until at least two months'
rent (or eight weeks in the case of a weekly tenancy) is unpaid before issuing the
Section 8 Notice so that the chances of successfully obtaining the possession order
are maximised. However, in many cases of rent default, landlords have been successful
in relying on grounds 10 & 11 alone.
b. Other breach of Contract
There are four other discretionary grounds which deal
with situations of misconduct on the part of the tenant:
- Ground 12: that the tenant has broken
one or more of his obligations under the tenancy agreement.
- Ground 13: that the condition of the premises
or any of the common parts has deteriorated because of the behaviour of the tenant,
his subtenant, or any other person living there.
- Ground 14: that the tenant or someone
living in or visiting the property has been guilty of conduct which is, or is likely
to cause a nuisance or annoyance to neighbours. Or that a person residing or visiting
the dwelling house has been convicted of using the property or allowing it to be
used, for immoral or illegal purposes or has committed an arrestable offence in,
or in the locality of, the dwelling house.
- Ground 15: that the condition of the furniture
has deteriorated because it has been ill-treated by the tenant, his subtenant, or
someone living there.
(This is a summary of the grounds -
the full wording of each Ground is given in The
Housing Act 1988).
c. Other Mandatory Grounds (Prior Notice)
The Act also makes provision for possession to be granted
on the following grounds:
- Ground 1: that the landlord used to live,
or intends to live in the property as his only or principal home.
- Ground 2: that the mortgagee is claiming
possession. NB this can only be of use where the mortgage predates the tenancy.
- Ground 3: that the tenancy is a holiday
let and was previously let for a holiday
- Ground 4: that the tenancy is a student
let and was previously let by an educational establishment to students
- Ground 5: that the property is held for
use by a minister of religion
(This is a summary of the grounds - the full wording
of each Ground is given in The Housing Act 1988).
In the above cases a court will generally require that
the landlord has served notice of the respective ground on the tenant
prior to or at the beginning of the tenancy. However, for grounds
1 & 2, a court has discretion to dispense with this requirement if it considers
it just and equitable to do so.
d. Other Grounds
A number of other grounds are also open to the landlord:
- Ground 6: where the landlord intends
to redevelop the property - a mandatory ground
- Ground 7: that the former tenant has
died (unless there is a person with a right to succeed) - a mandatory ground
- Ground 9: that suitable alternative accommodation
is available - a discretionary ground
- Ground 16: that the tenant was granted
the property in order to properly fulfil her employment duties and is no longer
employed by the landlord - a discretionary ground
- Ground 17: that the landlord was induced
to grant the tenancy by a false statement made knowingly or recklessly by either
the tenant or a person acting at the tenant's instigation
(This is a summary of the grounds - the full wording
of each Ground is given in The Housing Act 1988).
Timing Considerations:
There are normally significant delays involved in the
standard court possession procedure. The actual time taken to force a tenant to
give up occupation will depend at which step of the proceedings the tenant is motivated
to move. The defaulting tenant may decide to move once he receives a court summons.
Others will be more intransigent, often waiting until judgement is given, or at
worst, until evicted by the bailiff following execution of the warrant for possession.
Each step involves further delay and the entire process can generally take between
three to five months from start to finish. Since 15 October 2001 allocation of cases
can be fast track, multi-track or small claims (if both parties agree). The new
rules indicate that the following will be considered in determining allocation:
the amount of rent arrears, the importance of the defendant retaining possession
and the importance of vacant possession to the claimant.
The delays occur as follows:
Preparing to serve a Section 8 Notice:
A landlord seeking possession of an assured (or assured
shorthold) tenant under the Housing Act 1988 must tell the tenant that it is his
intention to start court proceedings by serving a notice on him. The Notice of Seeking
Possession is issued under Section 8 of the Housing Act 1988 and must be served
in the prescribed form - often referred to as a 'Section 8' or ''Form 3" (as described
by the regulations). The notice could be included with a final rent reminder letter.
The form requires you to name the address of the property
and the names of all tenants included on the tenancy agreement. Most importantly,
you must also enter, on the form, the grounds under which you are seeking possession,
and an explanation why each of the grounds is being relied upon. Where the tenant(s)
is in arrears of rent, it is important that a brief schedule or a copy of the rent
account is included specifying the amount claimed to be in arrears to show when
and how the arrears have arisen. When specifying the ground, it is important that
you supply the full and exact wording of each ground when completing the form. This
fact sheet simply gives a summary of the grounds - an exact wording of these ground
can be found in the Housing Act.
It is important that the notice should be correctly completed
and served. If there are substantial technical errors in the notice, the court is
entitled to suspend or strike out the possession action.
Service of the Notice:
A Section 8 notice may be served by post or in person.
If there is more than one tenant, the notice must be served on all tenants. The
courts will recognise the day of postal service as the day on which the letter would
normally have arrived. We suggest
that a colleague witnesses the sending of the notice. When using postal service,
it is recommended that the notice be sent by either registered or recorded delivery
and that a minimum of three working days is allowed for the notice to arrive.
Possession Proceedings:
Once you have issued the Section 8 Notice on your tenant,
you are required to wait until the notice has expired - this is the date given on
the notice.
If the tenant has not vacated, or paid up any rent arrears
by this point, then it will be necessary to start court possession proceedings.
Section 21 Notice Requiring Possession
of an Assured Shorthold Tenancy
(The Housing Act 1988)
Under the Housing Act 1988, a landlord who has
granted an assured shorthold tenancy has a legal right to get his property back
at the end of the tenancy. In order to invoke this right, he is required to
follow the correct legal procedure which includes service of a notice (under Section
21 of the Housing Act 1988) on his tenant. Section 21 is divided into subsections
with different rules applying to notice served during the fixed term of a tenancy
and notice for possession that is served during a statutory periodic tenancy.
Fixed Term Tenancies:
Section 21 of the Housing Act 1988 requires that the landlord
provides tenants of an Assured Shorthold Tenancy (AST) with a minimum of two months'
notice in writing that he/she wants possession of the property. Extra days should
be added if the notice is to be sent by post as the two months starts when the tenant
receives the notice.
The notice must be served before possession action can
be started. In the case of joint landlords the notice can be given by any
one of them. Possession under this section cannot take place during the initial
six months of the original tenancy. The provisions in Section 21(1)(b) apply
to fixed term tenancies. They state:
Without prejudice to any right of the landlord under an
assured shorthold tenancy to recover possession of the dwelling-house let on the
tenancy in accordance with Chapter I above, on or after the coming to an end of
an assured shorthold tenancy which was a fixed-term tenancy, a court shall make
an order for possession of the dwelling-house if it is satisfied-
a) That the assured shorthold
tenancy has come to an end and no further assured tenancy (whether shorthold or
not) is for the time being in existence, other than a statutory periodic tenancy:
and
b) The landlord, or in the
case of joint landlords, at least one of them has given to the tenant not less than
two months' notice stating that he requires possession of the dwelling-house.
Notice under this subsection can be served on a tenant at any time
during the fixed term of
the tenancy (but not before the fixed term begins) provided that the tenant receives
a minimum of two months' notice. This is the case even if the two months notice
ends after the tenancy agreement has expired. For example, if notice requiring
possession is served on the last day of the tenancy agreement, the tenant does not
have to give up possession of the dwelling-house until at least two months after
the date that the notice was served.
The notice should be dated in accordance with the provisions
above. Also, a notice should not be dated to expire on or before the last
day of the tenancy as this would be invalid. For example, where the
tenancy was due to expire on December 31st, then the section 21 notice
could be served on or before October 31st, and the notice dated to expire
‘after December 31st'.
Periodic Tenancies:
Section 21(4)(a) of the Housing Act 1988 applies to assured
shorthold tenancies that have become periodic and states:
Without prejudice to any such right, a court shall make
an order for possession of a dwelling house let on an assured shorthold tenancy
which is a periodic tenancy if the court is satisfied-
(a) that the landlord or, in the case of joint landlords,
at least one of them has given to the tenant a notice stating that, after a date
specified in the notice, being the last day of a period of the tenancy and not earlier
than two months after the date the notice was given, possession of the dwelling-house
is required by virtue of this section; and
(b) that the date specified in the notice under
paragraph (a) above is not earlier than the earliest day on which, the tenancy could
be brought to an end by a notice to quit given by the landlord on the same date
as the notice under paragraph (a) above
The procedure for serving notice under s21(4)(a) is slightly
more complicated. A notice complying with the above section should only be given
to a tenant whose tenancy has become a statutory periodic tenancy - a tenancy that
continues after the expiry of a fixed term assured shorthold. A minimum of two months
notice is required and the day on which the notice expires must be the last day
of a period of the tenancy. The period of a tenancy depends on how often the rent
is paid. Thus, if the rent is paid monthly, then the period of the tenancy
is one month. In order to find out what day is the last day of the period
in a particular tenancy it will be necessary to refer to the original fixed term
tenancy. The periodic tenancy begins immediately after the fixed term expires.
E.g. If the period of the
tenancy is monthly and if the first day of the current period is 3rd March then
the last day of that period would be the 2nd April and so a notice served during
the current period would need to be completed so as to expire on the last day of
a period after a further two months (i.e. 2nd June).
If the tenant does not leave on expiry of the notice,
possession can be sought through the courts by either the normal fixed date action
or by using the accelerated possession procedure.
To recover outstanding rent and
possession of a dwelling house, the landlord must seek possession by issuing
a notice under Section 8 of the Housing Act 1988, as amended by the 1996 Act and
it is not necessary to issue a Section 21 notice as well.
Renewals:
Where a Section 21 notice is served during the initial
term of the tenancy requiring possession at the end of the fixed term and the parties
later agree to renew the tenancy for a further fixed term, a fresh notice will need
to be issued to the tenant(s) before possession can be sought.
Service of Notice:
A Section 21 notice may be served by post or in person.
The courts will recognise the day of postal service as the day on which the letter
would normally have arrived.
We suggest that the sending of the notice is witnessed by a colleague. When
using postal service, it is recommended that the notice be sent by either registered
or recorded delivery and that a minimum of three working days is allowed for the
notice to arrive.
Possession Proceedings:
Once you have issued the Section 21 Notice on your tenant,
you are required to wait until the notice has expired (this is the date given on
the notice) before you can start possession proceedings.
If the tenant has not vacated, or paid up any rent arrears
by this point, then it will be necessary to start court possession proceedings.
This is done by obtaining the appropriate forms from your local court. There are
two procedures that can be used; the standard possession procedure and the accelerated
possession procedure (APP). The process, and useful case examples, is explained
in further detail in the Possession and Rent Arrears Pack.
The Housing Act 1996:
The Housing Act 1996 amended the Section 21 of the 1988
Act by requiring the notice given to be in writing. There is still no prescribed
form. The notice will be valid providing it contains the information required by
the relevant section and sub-sections.
Rent Increases and the Section 13 Notice
With all Assured Shorthold
Tenancies landlords can increase the rent after the initial fixed period if it is
stated in the tenancy agreement or if the tenant agrees to the increase. There may
be a rent increase clause in the tenancy agreement which would have been agreed
and signed at the start of the tenancy.
However, if the increase
is not stated in the agreement and the tenants dispute the increase then the landlords
are required to follow certain procedures if they wish to increase the rent on the
property.
The Housing Act 1988 makes
it possible for landlords to increase the rent after the initial fixed term by issuing
the tenant with a Section 13 Notice.
Rent Increases
Rent increases may be stated
in the tenancy agreement, so the tenant would have been made aware of the rent increase
in advance by the landlord. If there is no mention of a rent increase in the agreement
and the tenant is unwilling to mutually agree the increase then the landlord may
issue a Section 13 Notice.
If a landlord does not follow
the correct procedure and give the tenant notice of the increase then the tenant
can continue paying the set amount of rent. However, if a tenant disputes the increase
this could lead to them being evicted if the initial fixed period has ended.
Landlords often increase
the rent when they renew a tenancy agreement, as this makes it easier for them to
evict a tenant if they disagree with the new rent terms. At the start of a new fixed
term agreement any rent increase should be agreed by both landlord and tenant. The
tenant will then be renting through a fixed tenancy agreement.
After the initial fixed period
has ended, if the landlord and tenant do not sign another agreement, but the tenant
is allowed to stay and continue paying rent on a monthly, fortnightly or weekly
basis then the tenant is renting through a periodic tenancy agreement.
Notice required before
an increase
A landlord is required to
give the tenant sufficient notice before a rent increase is to take effect.
For a monthly, weekly or
fortnightly tenancy one month’s notice of the intended increase is required. For
a yearly tenancy, a period of six months' notice is required before the increase
can be put into effect.
The date on which the new
rent is required must not be earlier than a year after the date when the rent was
last increased using a Section 13 notice. If a new tenancy is in place then the
date should not be any earlier than a year after the date when the tenancy started.
The rent increase must begin
on the same day of the month that the tenancy started, not another day of the month.
For example, if the rent for the tenancy is due on the 28thof every month
then the new increased rent should also be due on the 28th
of the month.
Fixed Term Tenancies
Assured Shorthold Tenancies
enable the landlord to charge a higher rent after the initial fixed period, which
is usually six or twelve months. The rent cannot be increased during the first
fixed term.
A landlord can increase the
rent if they wish to after the initial fixed period, providing:
- The tenancy agreement
contains information on the procedure for a rent increase
- The landlord gives the
tenant the required notice of the intended rent increase
- The landlord provides
the tenant with written notice that a change will be made to the terms of the tenancy
agreement
Landlords are unable to increase
the rent before the end of the initial fixed period unless this is stated in the
tenancy agreement, or both the tenant and landlord agree to the increase in rent.
Periodic Tenancies
If the fixed term of a tenancy
has ended and no new agreement has been signed, then the tenancy automatically becomes
a periodic tenancy.
If the tenancy agreement
does not provide information on a rent increase, then the landlord can only increase
the rent if either:
- the tenant and landlord
agree, or
- a Section 13 Notice is
issued.
There is no limit on the
rent increase a landlord can propose with periodic tenancies.
Periodic tenancies make it
more difficult for a tenant to oppose rent increases as they have little protection
from eviction. The landlord has the right to decide to evict the tenant using the
correct procedure rather then accept lower rental payments.
Section 13 Notice
The Housing Act 1988 makes
it a requirement for a landlord to issue the tenant with a Section 13 notice if
the increase in rent is not stated in the tenancy agreement and the tenant refuses
to agree to the increased rent proposed.
The form giving notice of
an increase in rent is required to be completed by the landlord. The form contains
information on the rent increase and the starting date for the new rent proposed.
It guidance notes for both landlord and tenant and is quite straightforward to complete.
If a landlord decides to
increase the rent but does not issue a Section 13 notice then the tenant is not
obliged to pay the increase in rent, unless stated in the tenancy agreement.
If a landlord later tries to gain possession based on unpaid rent arrears due to
the increase, then the rent increases may not be accepted by the courts. There would
not then be a possession order based on rent arrears and the possession order may
be refused.
In some cases the landlord
may prefer to issue the tenant with a Section 13 notice, but more often than not
they would rather end the tenancy, if a tenant refuses to agree to the rent increase.
Eviction
Assured Shorthold Tenants
have very little protection from eviction. Tenants can be evicted after the initial
fixed period without a legal reason, providing the landlord gives them two months'
notice. Therefore Assured Shorthold Tenants often have little choice but to accept
rent increases if they wish to remain in the property.
A landlord may issue a Section
21 Notice at any time during the tenancy, whether it is a periodic tenancy or a
fixed term tenancy. However, if a landlord wishes to regain possession before the
end of the fixed term, this is only possible if the landlord is able to show that
certain conditions have been met. This would then require the landlord to firstly
issue the tenant with a Section 8 to quit.