It will come as no surprise to landlords and agents to hear us say that whenever a tenancy is being granted to a tenant, a copy of the tenancy agreement (ideally the original) should be retained. A tenancy creates rights and obligations and setting these out within a written Assured Shorthold Tenancy agreement (‘AST’) therefore makes sense. Entering into an AST aids transparency and sets out clearly important contractual terms such as the identity of the tenant, the rent payable, the property, when, how and by whom rent payments should be made, amongst others.
As with any document, AST’s can be lost, mislaid or perhaps never actually signed or entered into for any number of reasons. In these situations we are frequently asked what a landlord can do to evict a tenant.
The starting point is to double check whether there is any hope of obtaining a copy of the AST, if one ever existed. The tenant may be prepared to provide a copy to the landlord or agent, or where Housing Benefits have been claimed, the local authority may have a copy that they are able to share.
This blog focusses on situations where the tenancy is relatively recent, entered into after 27th February 1997, and where the tenant has not previously owned the property with any ‘side’ deals. A tenant in place pre 1997 and/or where for example there has been a historic sale and rent back agreement might complicate the legal position and eviction process but what follows is a general overview that will apply in most cases. In this area of law each case must be evaluated depending on the facts of that particular case, especially relevant where there is no written agreement to hand.
Notwithstanding the above, landlords and agents will be pleased to note that the process is actually surprisingly straightforward. A section 21 notice can still be served in accordance with the Housing Act 1988 (as amended) as long as it expires after the agreed fixed term. If no minimum term has been agreed then the default fixed term is 6 months. The section 21 notice will expire two months after service. At that stage, if the tenant has not vacated the property, the landlord will be entitled to issue a claim in the county court. Usually landlords at this point would be entitled to issue an accelerated possession claim meaning in simple terms that the claim and all documents will be provided when the claim is issued and the claim then initially reviewed on paper by a judge. Usually accelerated claims are dealt with on paper without the need for a hearing.
Where there is no written agreement the accelerated possession claim route is not available and a non-accelerated claim for possession of land is required. It might be that this makes little difference to a landlord other than the fact that at least one hearing will be required. Witness statements should be filed and served before the hearing confirming the details and background and setting out why there is no copy of the written agreement, or why one was never drafted in the first place. In many cases the judge will make a possession order at that stage and the usual court process will then apply including the need to apply for a Warrant of Possession of Land (bailiffs warrant) if the tenant does not leave by the date ordered by the court.
One of the additional items that landlords and agents should keep in mind in these situations is taking extra care to ensure that the section 21 notice served is actually valid. Usually the written agreement will set out important terms including the name of the tenant, whether there is a deposit and, if there is a deposit, the amount of that deposit. Issuing a claim in these circumstances means that care must be taken at the very outset to ensure that the section 21 notice is valid. For tenancies post 1st October 2015 this means that landlords and agents must consider and ensure that items such as gas safety certificates and how to rent booklets are dealt with before they service of any notice. Deposits must also be registered and prescribed information provided before any notice is served. We have blogged separately regarding these issues and the post 1st October 2015 changes which are summarized here.
• Enter into a written agreement with any tenant and be sure to retain a copy;
• Where a written agreement has been mislaid make enquiries to ensure a copy cannot be obtained elsewhere before assuming it is lost;
• Before serving a section 21 notice ensure all other compliance aspects have been addressed to ensure the notice is valid;
• Ensure that a low fixed fee is agreed for any review, notice and for the claim paperwork if you decide to instruct experts to help you obtain possession of your property.
Alex Cook is a Director at Helix. Alex initially trained academically as an unregistered barrister and was a Partner and Head of Civil Litigation at a large firm based in the South East before joining Helix Law. As well as focussing on expanding Helix, Alex specialises in commercial and property related litigation and he has acted for a broad range of clients including offshore property investment funds, small businesses and individual property owners.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.