Residential Landlord and Tenant Disputes information in this section:
- Breach of Covenant
- Ending Assured Shorthold Tenancies
- Ending Fixed Term Tenancies
- Periodic Tenancies
- Termination by Tenant
- Commercial Landlord & Tenant Disputes
Breach of Covenant
Landlords of residential properties often have situations when tenants breach the covenants contained in their leases. For example, the tenant fails to pay rent or fails to maintain the property to the standard required in the lease.
There are a number of options that will normally be available to a landlord including, subject to the terms of the lease, the right to terminate the lease early and recover possession of the property. This area of law is technical and there are a number of limitations on a landlord’s right to forfeit a long residential lease. For example, Court proceedings must be used if the property is occupied. The landlord cannot simply change the locks. Furthermore, it is likely that various notices would need to be served by the landlord prior to taking any steps detailing either the rent due or breach of the lease.
In light of the above, the landlord should seek specialist legal advice before undertaking any steps. Furthermore, a tenant facing this sort of action from the landlord should seek specialist advice to ascertain whether the correct steps have been taken by the landlord.
Myerson Property Litigation advise both landlords and tenants regularly on this area of law. Specialist advice should be sought prior to any steps being taken.
Ending Assured Shorthold Tenancies
Ending an Assured Shorthold Tenancy (“AST”)
What is an AST?
An AST is a tenancy of a residential property granted by a landlord under section 1 of the Housing Act 1988 (“the Housing Act”). For a tenancy to qualify as an AST it has to have been created on or after 28 February 1997 and the tenant or tenants have to rent the property as a separate dwelling house as their only or principal home.
Landlords’ procedure to terminate an AST
Sections 8 and 21 of the Housing Act provide for two different procedures to enable a landlord to terminate an AST. The procedure to be followed depends on whether the tenancy is for a fixed term or a periodic tenancy.
It is important to note that landlords cannot evict tenants from a residential property without a court order. The procedure to evict a tenant from a residential property is therefore different to a landlord who wants to evict a tenant from a commercial property.
Grounds for possession
For landlords wishing to use Section 8 of the Housing Act to evict a tenant, the grounds for obtaining possession are set out in Schedule 2 of the Housing Act. These grounds are not relevant to those landlords wishing to evict tenants pursuant to Section 21 of the Housing Act.
Some of the grounds for possession are mandatory meaning the court must grant an order for possession if the landlord demonstrates that ground exists. Other grounds are discretionary meaning the court may only make an order for possession if the landlord can demonstrate that ground and the court considers it reasonable to evict the tenant.
The table below sets out the grounds for possession, whether the ground is mandatory or discretionary and the minimum notice the landlord has to give to a tenant to remedy the breach before commencing possession proceedings. Any notice must be given in writing.
|Ground||Mandatory or Discretionary?||Minimum Notice Landlord is Required to Give to Tenant|
|Landlord occupied the property as only principal residence before the tenancy started or landlord requires property back in order to live in it as primary residence||Mandatory||2 Months|
|Mortgage company requires possession of the property because of mortgage arrears||Mandatory||2 months|
|Tenancy is for a fixed term not exceeding 8 months and was occupied as a holiday let during the 12 months before the tenancy started||Mandatory||2 Weeks|
|Tenancy is for a fixed term not exceeding 12 months and was left by an educational establishment during the 12 months before the tenancy started||Mandatory||2 Weeks|
|Property is occupied by a religious minister as a dwelling house in order to perform his duties and is required by another religious minister||Mandatory||2 Months|
|Landlord intends to demolish/reconstruct all or substantial part of the property and tenant cannot remain in the property whilst works are carried out||Mandatory||2 Months|
|Previous tenant has died and tenancy has passed to a beneficiary under the terms of a will but that new tenant is not entitled to the tenancy under the laws of succession||Mandatory||2 Months|
|The tenant or any other person visiting or residing at the property has: (a) Been convicted of a serious offence committed within the locality of the property or against someone living at or within the vicinity of the property or against the landlord (b) Breached an injunction under section 1 of the Anti-Social Behaviour Crime and Policing Act 2014 and the breach occurred within or in the vicinity of the property or the breach occurred elsewhere but has caused nuisance or annoyance to someone with the right to reside in the property or in accommodation within the vicinity or to the landlord (c) Been convicted of an offence under section 30 of the Anti-Social Behaviour Crime and Policing Act 2014 (d) The dwelling house is or has been subject to a closure order under section 80 of the Anti-Social Behaviour Crime and Policing Act 2014 and access to the property has been prohibited for a continuous period of more than 48 hours (e) Been convicted of an offence under section 80(4) or 82(8) of the Environmental Protection Act 1990||Mandatory||1 Month|
|Rent is unpaid at time of service of a section 8 notice and at the date of the court hearing: (a) If rent is paid weekly or fortnightly at least eight weeks’ rent is unpaid; (b) If rent is payable monthly at least two months’ rent is unpaid; (c) If rent is payable quarterly at least one quarter’s rent is more than three months in arrears; (d) If rent is payable yearly at least three months’ rent is more than three months in arrears||Mandatory||2 Weeks|
|Suitable alternative accommodation is or will be available to the tenant when the possession order takes effect||Discretionary||2 Months|
|Rent was unpaid by the tenant when a section 8 notice was served and has not been paid by the time possession proceedings were begun||Discretionary||2 Weeks|
|Tenant has persistently delayed paying rent||Discretionary||2 Weeks|
|Tenant has broken or not performed other obligations under the tenancy||Discretionary||2 Weeks|
|Tenant or anybody living with the tenant or visiting the tenant has allowed the condition of the property to deteriorate||Discretionary||2 Weeks|
|The tenant or anyone living with or visiting the tenant: (a) Is guilty of conduct that has caused a nuisance or annoyance to neighbours (b) Has been convicted of using the property for illegal or immoral purposes or (c) Has been convicted of an arrestable offence in the area of the property||Discretionary||No Notice Required – Proceedings Can be Brought as Soon as Notice Served|
|Condition of furniture at the property has deteriorated due to ill treatment by the tenant or any other person residing at the property||Discretionary||2 Weeks|
|Property was let to the tenant as part of his employment and the tenant is no longer employed by the landlord||Discretionary||2 Weeks|
|Landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant or person acting for the tenant||Discretionary||2 Weeks|
To rely on grounds 1 – 5, the landlord must give the tenant written notice, before the tenancy is entered into, that it may wish to regain possession of the property upon these grounds in the future.
If the property let is subject to a mortgage, the mortgage company may require the landlord to serve a notice that ground 2 might be relied upon in the future.
Ending Fixed Term Tenancies
To bring these to an end before the term expires, a landlord can only regain possession using the procedure under section 8 of the Housing Act. There are three stages to that procedure:
- Section 8 notice requiring possession.
- Applying for a court order for possession if the tenant does not leave the property following service of the section 8 notice.
- Applying for a warrant for possession if the tenant does not leave the property following the date specified in the court’s possession order.
To bring a fixed term tenancy to an end after the fixed term has expired, landlords can use the section 21 procedure. This procedure allows landlords to regain possession without the need for a court hearing and none of the possession grounds mentioned in the table above apply.
Simply speaking, landlords would have to serve a written notice on their tenant giving the tenant 2 months to leave the property. If the tenant remains at the property upon expiry of the notice, the landlord can then use the court’s accelerated procedure in order to regain possession.
Landlords can expect to regain possession approximately 8 weeks after court proceedings are commenced (although this is subject to any delays by the courts in dealing with the paperwork).
Where an AST is a periodic tenancy from the beginning, the court can order possession if the landlord gives the tenant at least two months’ written notice that it requires possession of the property. However, an order for possession will not take effect earlier than six months after the tenancy originally began.
The notice must expire on the last day of a tenancy period and specify that possession is required after that day. For example, if a tenancy is a monthly periodic tenancy, with a new tenancy arising on the 15th of every month, and the landlord serves a notice on 8 February, two months from the date of service of the notice would be 7 April. However, the notice must expire on 14 April and therefore the landlord must give two months and seven days’ notice. The landlord would be entitled to possession on 15 April.
Termination by Tenant
Tenants’ procedure to terminate an AST during the fixed term
Tenants may be able to:
- Exercise a break clause in the tenancy agreement (if there is one).
- Negotiate a surrender with the landlord.
- Assign the tenancy to a new tenant (if allowed by the tenancy agreement).
- Underlet the property to a new subtenant (if allowed by the tenancy agreement).
The basic contractual provision is that a tenant is liable for rent for the whole of the fixed term even if they leave the property early. However landlords may have trouble enforcing this as the Competition and Markets Authority (CMA) have said:
- That they would object to a tenant having to pay rent for the whole term if they have to leave the property early;
- Landlords are under an obligation to mitigate their losses by reletting the property to a new tenant;
- That they would not object to tenants having to pay a reasonable reletting fee and the rent due until the property is re-let where this is less than having to pay rent for the rest of the fixed term.
Tenants’ procedure to terminate an AST after the fixed term has expired
Tenants do not have to give notice to end the tenancy when the fixed term expires. A fixed term tenancy will automatically come to an end and if the tenant leaves at that point, no periodic tenancy will arise. Some tenants however will prefer to give their landlord some notice that they will vacate the property at the end of the term to give the landlord the opportunity to market and re-let the property. The CMA has stated that this would be the preferred practice.
Tenants’ procedure to terminate a periodic tenancy
Tenants must give written notice to the landlord to terminate a periodic tenancy.
The notice must give landlords at least 4 weeks’ notice if rent is paid on a weekly basis or at least one months’ notice is rent is paid on a monthly basis. If the tenancy is a yearly tenancy, at least six months’ notice must be given.
The notice must also expire on the last day of the tenancy. So if a tenant pays rent on the 15th of each month, the tenancy begins on the 15th of each month and expires on the 14th of each month. Therefore, the tenant must serve a notice that expires on the 14th.
Our property litigation solicitors have experience in assisting landlords and tenants in bringing assured shorthold tenancies to an end. Please do not hesitate to contact one of them to discuss this matter further.
How We Can Help
A member of our specialist team will be happy to help.
To discuss Residential Landlord and Tenant Disputes issues, please either use the contact form on the right, email us at firstname.lastname@example.org or call us today on +44(0)161 941 4000 to speak to a member of our team.