I am often approached by Landlords with questions as to how to end their tenancy or lease. Set out below are the key points Landlords needs to be aware of and the pitfalls to avoid when considering ending a residential tenancy or lease.
Methods of ending a residential tenancy:
Tenants quite often will reside in a residential tenancy under an Assured Shorthold Tenancy (AST). This is a type of tenancy that allows the landlord to let the property whilst retaining the right to repossess the property at the end of the term.
A landlord may terminate an AST in one of two ways, either:
- Through ‘a fault’ based route under Section 8 of the Housing Act 1998; or
- Through a ‘no-fault’ based route under Section 21 of the Housing Act 1998.
How to end a residential tenancy under the Section 21 Procedure?
Serving a Notice under Section 21 is usually the quickest, and most cost effective route for obtaining possession. However, in order to utilise this route, a landlord will need to make sure that he or she has complied with the following:
- Has a written tenancy agreement ideally signed by all parties;
- Has a valid Gas Safety Certificate (which is renewed annually and is valid for all of the tenancy);
- Has registered the deposit in a deposit scheme, and served the accompanying prescribed information on the Tenant within 30 days, together with the Government’s “How to Rent” booklet; and
- Has served a valid Section 21 Notice, in the prescribed format, giving the tenant at least 2 months’ notice. A Landlord cannot serve Notice that is due to expire prior to the last day of the fixed term.
If a Landlord has not carried out the above steps, then he or she will not be able to serve a Notice under Section 21, but may be able to obtain possession through the Section 8 route.
How to end a tenancy using the Section 8 Procedure?
Section 8 possession proceedings in contrast are fault based and can be found in Schedule 2 to the Housing Act 1998. This clearly sets out the grounds for possession under Section 8, as well as the minimum notice period required, and splits the grounds into:
- “Mandatory Grounds”, i.e. the Court has no discretion and must grant possession to the Landlord; and
- “Discretionary Grounds”, i.e. where the decision is at the discretion of the Court.
Section 8 possession proceedings are genuinely more flexible, but the Landlord does have the burden of proving fault on the Tenant’s part.
A Landlord may also want to utilise the Section 8 procedure over the Section 21 procedure if they are due any money from the Tenant. A Landlord can also recover damages under this route.
The end result under either route is the same however, if the Tenant refuses to leave the property, then the Landlord will need to apply to the Court for an Order for Possession.
Pitfalls to avoid when ending an AST:
Landlords should always bear in mind the following when entering into an AST and/or when deciding to end an AST:
- The Deregulation Act 2015 makes it a strict liability offence (i.e. an offence to which there is no defence) for a Landlord to fail to register a Tenant’s deposit in a scheme, and to serve the prescribed information relating to this, within 30 days. If a Landlord does not comply with this legislation, then he or she is automatically liable to the Tenant for 3x the amount of the deposit;
- Notice to end the AST must be served in a prescribed format. If a Landlord doesn’t use this format, then the Notice may be considered to be invalid;
- If a Landlord does not serve Notice by the end of the prescribed term, then the AST automatically rolls over and becomes what is known as Periodic Tenancy, i.e. a tenancy running from month to month. This means that the Tenant is entitled to stay in the property until he or she is given at least 2 months to leave the property;
- A Landlord should not simply change the locks if the Tenant remains in the property after the notice period has ended. A Landlord must issue possession proceedings at the Court to obtain possession of the property once again;
- If Court proceedings are ultimately required, and the Landlord is granted possession, then the Tenant will most likely be afforded a short period of time to collect his or her belongings. It is important that a Landlord takes steps to look after the Tenant’s belongings during this time, as well as for a reasonable period of time afterwards. The Landlord should not just simply throw the belongings away at the end of the Court afforded time, without sending notice of his or her intention to do so first. This is because the Landlord will inadvertedly take possession of the Tenant’s belongings and will become what is known legally as a “Bailee”. A Bailee has a wide range of duties, including a duty to take reasonable care of the goods in the Bailee’s possession, and if a Landlord breaches these obligations, then they can ultimately be deemed to be liable to the Tenant for wrongfully interfering with their goods (amongst other things).
Landlords should make sure that they are fully complying with the relevant legislation as set out above. By taking legal advice early on in the process, it can help to ensure that possession proceedings (if required) run as smoothly as possible, which in turn will minimise a Landlord’s legal costs.
If you’d like more information, please visit our residential conveyancing solicitors page.
For more information and advice on ending a residential tenancy/an Assured Shorthold Tenancy, please contact our Dispute Resolution team on 0161 475 7676.