This note assumes that you are not asking for the return of the property because your tenants have breached terms of their Tenancy Agreement e.g. not paying rent or being a nuisance. If you seek possession on the basis of breach then a Section 8 Notice must be served. A Section 8 Notice can be served during the term.

The formal notice that must be provided is known as a “Section 21 Notice” (the “Notice”).

There are various questions and actions that a Landlord should consider before they serve a Notice. If they do not do so, it may result in the Notice not being valid!  If a valid Notice is not served and the Landlord needs to go to Court to evict the tenants, then the Court will reject the proceedings and the Landlord will need to start the entire process over again.

So, as a general checklist (and some of the items below are an absolute requirement for service of a valid Notice):

1. You cannot serve a Notice if it is less than 4 months since the tenancy started.
2. The date in the Notice by which possession is required cannot be before the expiry of the tenancy’s term.
3. Is there gas at the property.
4. Have Gas Certificates been served prior to the tenants moving in and annually since?
5. Was a deposit taken. It must be no greater than 5 weeks’ rent?
6. Was the deposit registered within a Tenancy Deposit Scheme within 30 days of receipt?
7. Has the Tenancy Deposit Certificate been served on the tenants within 30 days of receipt of the deposit?
8. Have the tenants been served with the “prescribed information” within 30 days of receipt of the deposit?
9. Have the tenants been served with a copy of the EPC for the property?
10. Have the tenants been served with the Government’s “How to Rent” booklet?
11. Have the tenants been served with the Electrical Installation Certificate?
12. If the property requires a License to Let from the Council, has it been served on the tenants?
13. Have any notices been served on you by any local authority or similar in respect of the condition of the property? You must not serve a Notice in retaliation.
14. Read the Tenancy Agreement to determine how the Notice must be served on the tenants.

This article has been brought to you by Graeme Bellenger, an experienced lawyer from Kidd Rapinet Solicitors in Canary Wharf who specialises in Landlord and Tenant Law and acting for Landlords. You can contact Graeme using the form provided, by email gbellenger@kiddrapinet.co.uk or tel: 0207 925 0303.  You can book an appointment with any of our lawyers across our offices in Aylesbury, Canary Wharf, Farnham, High Wycombe, Maidenhead or Slough, using the form provided.

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 them 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.

The post Landlords – Providing notice to your tenants to leave your property appeared first on Kidd Rapinet.

If property damage or unpaid rent exceeds the amount of the deposit, the landlord can seek a County Court Judgment against the tenant. Tenants should avoid having a CCJ registered against them, as it will affect their credit rating.

If a landlord sues for damages of under £10,000, the matter will be allocated to the Small Claims Court, which hears modest value claims and often parties are unrepresented by lawyers. Wins or lose, the general rule is that each side pays their own legal costs.

If a landlord takes a deposit it is critical to register it in a Tenancy Deposit Scheme within 30 days of receipt and serve the deposit certificate on the tenant, together with the “Prescribed Information”.

If the landlord does not register the deposit and serve the Information, then the tenant can make a claim against the landlord. There is no defence to a valid claim and the landlord will be ordered to repay the deposit and compensation between 1-3 times the value of the deposit! The tenant may be awarded their legal costs even if the claim is for under £10,000.

So it’s prudent to take a deposit, but protect it immediately, or be prepared for your tenant to make a claim against you!

Properly managing your property, an expensive asset you have worked hard to acquire, shouldn’t be handled casually. It’s important to have a well-drafted Assured Shorthold Tenancy Agreement (AST) and to serve all the information required by statute.

This article has been brought to you by Graeme Bellenger,  a litigation solicitor and the managing partner of Kidd Rapinet, Canary Wharf.  He specialises in residential and commercial property, together with employment law.

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.

The post Must a residential landlord take a deposit? appeared first on Kidd Rapinet.

Just like any business, however, renting property is not without its challenges. One of the more stressful aspects is dealing with evictions. Nobody ever wants to be in the position where they are forced to evict a tenant but sometimes, you are left with no choice.

If you do need to evict a residential tenant, it’s important to follow strict procedures. Failure to do so could result in you being found guilty of harassing or illegally evicting tenants.

Check if you have grounds to evict your tenant

NB – Until the 21^st May 2021, no evictions or bailiffs can take place except in exceptional circumstances. You can find out more about this on the gov.uk website.

There are a number of grounds for tenant eviction, but these can vary depending on the type of tenancy agreement. Typically, an eviction process needs to start with a notification to the tenant to inform them of your decision.

Below is a list of some of the grounds for eviction (which you will need to prove with evidence):

• The tenant has not paid rent for at least six months or is regularly late paying their rent
• You need to carry out extensive repairs to the property
• The property is being repossessed
• There has been a breach of contract
• The property has fallen into a state of disrepair
• Anti-social behaviour
• The tenant provided false information to secure the property

Procedures for different types of tenancy

 The exact procedure you will need to follow depends on the tenancy agreement and its terms.

Assured shorthold tenancies

If your tenants have an assured shorthold tenancy (either periodic or fixed-term), you can:

• Issue them with a Section 21 notice if you want the property back at the end of a fixed term
• Give them a Section 8 notice if they’ve broken the terms of the tenancy
• Apply to the court for a standard possession order if your tenants haven’t left by the date specified on the notice and they owe you rent
• If you don’t wish to claim any unpaid rent, then in some circumstances, you can apply for an accelerated possession order
• If your tenants still won’t leave after you have obtained a Possession Order, you can apply for a warrant for possession. This means bailiffs can remove them (after 31 May 2021)

Excluded tenancies or licences

You don’t have to go to court to evict tenants if they have an excluded tenancy or licence. This might be the case if they live with you for example.

You do however need to give them ‘reasonable notice’ to quit. This does not have to be given in writing and usually means the length of the rental payment period. If someone pays you rent weekly, you can give them one week’s notice. If they pay you monthly, you will need to give them one month’s notice.

Assured and regulated tenancies

If someone started their tenancy before 27 February 1997, they might have an assured or regulated tenancy. If this is the case, they have increased protection and you will need to follow different rules.

If you would like help to evict a tenant, please get in touch with us using the form provided.

This article is brought to you by Cyrus Medora from our litigation department at Kidd Rapinet, Slough.  If you have an issue with a tenant or another residential property issue where you need expert advice, please use the form to get in touch.

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.

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• 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.

The post Possession Claims – As a landlord, how do you protect yourself appeared first on Kidd Rapinet.

Standard Procedure

Under this procedure, the landlord uses the N5 Claim Form for Possession. The standard procedure is used when the landlord is claiming possession based on rent arrears or when the landlord cannot use the Accelerated Procedure, set out below.

The Claim Form should set out the details of the claim in a document called Particulars of Claim. In a claim for possession based on arrears or rent, then the Particulars include following information:

• The amount of arrears due at the start of the claim and a full breakdown or schedule, with dates, of when the arrears started.
• A calculation of the daily rate of rent and interest.
• Details of what steps have been taken to recover the arrears from the tenant.
• Information about the defendant’s circumstances, for example whether the tenant receives benefits.
• If the possession is based on the tenant’s conduct, give details of the conduct alleged.

Once the Claim Form and Particulars have been sent to the court, the court will issue, or start, the claim and a copy of these documents are sent to the tenant. At the same time, the court will fix a date and time for the first hearing and notify all parties. How soon the first hearing will be depends a lot on how busy the local courts are but is usually 6-8 weeks.

The tenant, who is the Defendant, then has an opportunity to respond to the claim by filing a Defence with the court. The Defendant usually has 14 days to do so. The purpose of the Defence is for the tenant o respond to the various allegations made against them and to explain why a possession Order should not be made.

Unlike in other kinds of claims, in a possession claim, if a defendant does not file a defence, this does not mean the landlord automatically “wins”. The court can, however, take that failure into account when deciding what to do.

No later than 2 clear days before the hearing, the landlord should file his/her evidence to support the claims they made in the Claim Form and particulars. They should do this by filing a Witness Statement, verified with a Statement of Truth. This Witness Statement should explain why the landlord is entitled to possession, exhibit a copy of the tenancy agreement and give clear details of all payments made or not made by the tenant and any other relevant matters.

At the hearing, the court can either treat it as a final hearing and make a decision on the day itself or the court can treat the hearing as a “directions hearing” where the court will give further directions (or a timetable of next steps) for the case to be decided at another, final, hearing at later date. Which way the court decides depends on whether the court feels there is enough evidence before it to make a final decision either way.

If the tenant does not turn up, the court can still make a possession order against them.

If the court decides that the claimant is entitled to possession, it will make an order for possession. A tenant will always been given a reasonable time to leave the premises and the parties can ask the court to decide what that date it. Where the possession order is based on a section 21 notice, the usual period is 14 days but can be extended up to 6 weeks in cases of exceptional circumstances.

Accelerated procedure

A landlord can use what is called the “accelerated possession procedure” if the landlord is terminating an assured shorthold tenancy by using a section 21 Notice. Some of the requirements a landlord must meet to use this procedure are:

• The tenancy must have started on or after 15 January 1989.
• The claim must be for possession only and so cannot include a claim for payment of arrears.
• The tenancy must be a written tenancy
• A valid notice under section 21(1) or section 21(4) of the Housing Act has been served on the tenant.

The landlord starts the claim using a N5B Claim Form. Evidence that the landlord has protected the deposit with a Tenancy Deposit Scheme must also be attached to the claim form. A landlord cannot serve a section 21 notice and utilise the accelerated procedure, if it has failed in its statutory duty to protect the deposit. The Claim form also requires a copy of the tenancy agreement and section 21 notice to be attached.

Once the claim form has been sent to court to be issued and the tenant receives a copy, the tenant has 14 days to file a Defence. If no Defence is filed, the Landlord can ask for the Possession Order to be made by simply completing the correct form and sending this to the court.

Unlike in the standard procedure, there is not normally a first hearing in the Accelerated procedure. Instead the paperwork is passed up to a judge to consider.

The judge will consider the claim and do one of the following things:

1. Make an order for possession without a hearing; or
2. Fix a hearing date if the judge is not satisfied that the claimant is entitled to possession under section 21; or
3. Strike out the claim if it is obvious to the judge that the landlord is not entitled to possession.

The post Guide to Possession claims for residential property appeared first on Kidd Rapinet.

Kidd Rapinet’s London office, says “This case of Kernott v Jones confirmed the existing law and said that there was ‘a total lack of evidence about the parties’ intentions’. The Court of Appeal overturned the courts below, which had given the remaining cohabitant 90%. The cohabitants had bought the house together in 1985 and one moved out in 1993. The other cohabitant then paid the rest of the mortgage and funded their two children.”

If you propose to cohabit, rather than marry, then do be aware there are significant legal differences and take legal advice. It is not difficult to draw up a document ensuring the percentage shares reflect the parties’ intentions and the percentage shareholdings can even be registered at the Land Registry. Please speak to our residential conveyancing team for further information.

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