Help! My tenant has signed a fixed term tenancy and is disruptive as well as regularly late making payments. Can I take back possession before the end of the fixed term?
Landlords often seek solicitor’s advice when faced with fixed term tenancy issues.
Tenants are protected by the Protection from Eviction Act 1977. It is a criminal offence to evict an occupier from a residential premise without a court order, but there are options which landlords can consider:
Section 21 notice – what is this and how can it help landlords with fixed term tenancy issues?
As a landlord, the first thing to note is that if you have entered into a fixed term residential assured shorthold tenancy with the tenant, usually the most risk-free and cheapest option is to serve the tenant with a section 21 notice. This gives them notice that their tenancy will come to an end once the fixed term has expired. Landlords should, however, note that this cannot be done within the first four months of the fixed term.
The section 21 notice must comply with the prescribed form and must be served at least two months before the fixed tenancy comes to an end.
In England, as of 1 October 2018, before a landlord can even serve a section 21 notice, they must have provided the tenant with the following:
- Energy Performance Certificate (EPC);
- Valid gas safety certificate;
- How to rent booklet;
- If the deposit is protected, any information about its whereabouts;
- House in Multiple Occupation (HMO) licence if relevant.
Often landlords do not want to wait until the expiry of the fixed term.
Section 8 notice – what is this and how can landlords use one?
Landlords can only end a fixed term tenancy by relying on one of the grounds applicable to a Section 8 notice.
Common grounds include (but are not limited to) if the tenant has not paid rent for two months as at the date of the hearing for possession. In this circumstance, the court must order possession.
Matters may become complicated if the tenant makes payment of the rent once possession proceedings have been issued. In this case, the court is unlikely to grant possession if rent has been made. The only way to take back possession in this instance would be to rely on a section 21 notice.
The court may, however, order possession if the tenant 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.
Unlike a section 21 notice, if a landlord relies on this ground it can be defended by the tenant which in turn can lead to an expensive dispute based on evidence by both parties.
Landlords should also consider reviewing their Assured Shorthold Tenancy (AST) templates to ensure that they allow them to end the tenancy on a Section 8 ground.
Other grounds are also available and landlords should seek advice if they want to serve a section 8 notice on the tenant.
It is not always a good idea to serve both a section 8 and a section 21 notice at the same time as this often confuses the tenant and may lead to an issue over the validity of notices.
You should seek legal advice if you are looking to take back possession in these circumstances and you are unclear on the law in this area.
Please note that if your property is in Wales, the law is slightly different and so you should seek legal advice before taking any action.