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Possession Claims – As a landlord, how do you protect yourself

The potential consequences of evicting a person from their home, including homelessness, are considered so serious that when it comes to landlord and tenant disputes, the law sometimes feels like it favours the tenant.

Dispute Resolution

As a landlord who might need to recover a rental property from a tenant, how can you protect your position?

  • The law on this is complicated, as there are many variables and provisos. The respective rights of you and the tenant, and the procedure to follow, depend on factors like the date of the original tenancy agreement, type of tenancy and your reason for wanting to terminate it, notably whether the tenant is at fault at not. You are recommended to take legal advice to ensure you follow the appropriate procedure for your situation. If you get it wrong, you risk the tenant claiming damages from you for breach of tenancy, harassment and/or unlawful eviction.
  • Before the start of the lease, vet your prospective tenants. Be sure to obtain proof of their ability to pay the rent, and character references to show they are likely to look after the property and abide by the terms of their lease. And from day one of the tenancy, consider taking the following steps to strengthen your position in case you later need to evict the tenant:
  • Check with your solicitor if there are any notices you should serve on the tenant at the start of the lease, so as to entitle you in future to claim possession in certain circumstances, for example if you wanted to move into the property yourself.
  • Make sure you comply with all the landlord’s obligations, including your duty to:
    a. Protect any deposit money, if the tenant paid a deposit, in an authorised protection scheme (“properly protect” it);
    b. Install/maintain smoke and carbon monoxide detectors in the property;
    c. Provide the tenant with a current energy performance certificate and gas safety certificate.
  • If you breach terms of the lease, this could complicate possession proceedings. You could even forfeit your right to evict the tenant, especially if they are not at fault, for example if you wanted the property back so as to sell it.
  • Also make sure the tenant complies with all their obligations under the lease. If they breach any, be sure to raise it with them straight away. Failure to do so could lead the tenant to argue that by not seeking to enforce the terms of the lease, you gave implied consent to the breach.
  • Think ahead. You need to give the tenant notice before starting a claim for possession, and the notice period depends on the grounds for your claim. Different notice periods apply, for example, if it is based on rent arrears, or if there is no fault on the part of tenant but you wish to possess the property at the end of the tenancy.
  • Legal costs in connection with possession proceedings can be high. Even if the tenant is at fault and is ordered to contribute to your costs, you may only recover a small proportion. Consider taking out legal protection insurance that could help pay your costs.
  • Better still, focus on building a good working relationship with your tenant in the hope that this enables you to resolve disputes without recourse to the court.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.