
Frequently Asked Questions
Residential Landlord & Tenant Litigation
Section 21
Do I need to have a reason to serve my tenant with a section 21 notice?
No. A landlord can end a tenancy at the end of the fixed term by using a section 21 notice or by invoking the break clause within the tenancy agreement (if applicable) without providing a reason. This is why the section 21 route is commonly known as a ‘no fault eviction’.
What are the legal requirements I need to comply with/consider before serving a 21 notice?
- You must ensure that you have complied with the deposit rules, i.e. provided your tenant with the prescribed information and deposit certificate within 30 days of the receipt of deposit.
- You must ensure that you have given the tenant a copy of the then valid gas safety certificate at the commencement of the tenancy and any subsequent renewal certificates. If you have not complied, you can issue your tenant with the said certificates prior to the service of any section 21 notice. Failure to do this will render your section 21 notice invalid.
- You must ensure that you have provided your tenant with a copy of the Government’s How to Rent Guide that was applicable at the commencement of the tenancy, when it was renewed (if the document has been updated) and the applicable version when the tenancy became periodic. If you have not complied, you can issue these documents prior to the service of any section 21 notice.
- You must provide the tenant with a copy of the EPC certificate at the commencement of the tenancy.
- You must ensure that the property is licensed (if applicable)
- You cannot issue a section 21 notice if the council has issued an improvement notice or notice requiring emergency remedial action within the last 6 months.
- You must ensure that any deposit/fees collected from the tenant complies with the Tenant Fees Act 2019.
What is the notice period for a section 21 notice?
The notice period is 2 months from the deemed date of service
What is the lifespan of a section 21 notice?
A section 21 notice is valid for 6 months from the date the notice is given to your tenant. It is important to note that you cannot serve a section 21 notice in the first 4 months of the tenancy or use a section 21 notice to end the tenancy before the end of the fixed term unless there is a break clause within the tenancy that allows it to be terminated early.
Do I need to attend a hearing for a section 21 claim?
An accelerated claim (i.e., section 21 possession proceedings) is usually decided by the court on paper. However, there may be instances where the Judge may list the claim for a possession hearing; perhaps for further clarification or where the tenant has filed a defence. .
Can I obtain a money judgment order under section 21?
No, a possession claim brought under section 21 is for possession only. You can issue a separate money claim against your tenant for rent arrears or issue the possession claim manually to include a claim for rent arrears.
Section 8 (rent arrears)
What are the rent arrears grounds for possession?
The grounds for possession are 8, 10 and 11. Ground 8 is a mandatory ground which means that if the court is satisfied that this ground has been met, the court should award the landlord a possession order. Grounds 10 and 11 still relate to arrears and late payment of rent but are discretionary grounds, which means the court will only grant a possession order if it considers it reasonable to do so. We always recommend that grounds 10 and 11 are pleaded in conjunction with ground 8 on a section 8 notice. This is because if your tenant brings the arrears below the mandatory ground threshold prior to, or on the day of the hearing, you can rely on discretionary grounds 10 and 11, although this does not guarantee a possession order.
How long do I need to wait before issuing my tenant with a section 8 notice?
To rely on ground 8:
For tenancies payable monthly, your tenant must be at least 2 months in arrears; for weekly payments, at least 8 weeks in arrears; for quarterly payments, at least one quarter of rent must be outstanding for more than 3 months; and for yearly payments, at least 3 months’ rent must be outstanding for more than 3 months.
Does the possession date on my rent arrears section 8 notice matter?
Yes, it is important that you allow clear 14 days from the deemed date of service, or you risk the section 8 notice being invalid. We always recommend that you allow an extra day to be on the safe side.
How do I issue my claim for possession?
Claims for rent arrears are usually issued via the court’s PCOL (Possession Claim Online) system. Once the claim is submitted via this portal, you will be allocated a court and a hearing date by return.
How do I prepare for the possession hearing?
It is highly recommended that you instruct a court advocate to represent you at the hearing. At Horsted Law, we will always arrange for an advocate to represent you and we will ensure that all relevant documents are filed at court ahead of the hearing. We also recommend that the landlord or managing agent attends the hearing with an up-to-date rent statement.
What happens if my tenant files a defence and/or counterclaim before or at the hearing?
It is important to note that even if your tenant does not file a defence and/or counterclaim prior to the hearing, they can still do this at the hearing especially if they are represented by a duty solicitor. If the court finds that your tenant has reasonable grounds for defending the possession claim and/or for bringing the counterclaim, the claim is likely to be adjourned with further directions ordered and you may not obtain a possession order at that possession hearing. Section 8 claims can be defended on the basis of disrepair so you must ensure that you have complied with your repairing obligations before issuing a possession claim against your tenant. At Horsted Law, our team of specialist lawyers can advise you on how to deal with defended matters.
Bailiffs
When do I need to apply for a bailiff?
A possession order will specify the possession date I.e., the date your tenant must leave the property. If they remain in the property after the possession date, you can apply for a warrant for possession of land (county court bailiff).
How soon can I get a county court bailiff appointment date?
The courts are currently facing severe backlogs so it may take some time to be given a bailiff appointment date. You may be looking at up to 8 weeks or more depending on the court. You can opt for a High Court enforcement officer if you require a quicker eviction.
Do I need to notify my tenant of the bailiff appointment date?
You don’t need to as the court will send your tenant an eviction notice with the bailiff appointment date.
High Court Enforcement Officer or a County Court Bailiff?
The High Court enforcement route is much quicker than the county court. However, you will, first, need to apply for permission from the county court to transfer the case to the High court for enforcement purposes. A High court enforcement officer can deal with the process of obtaining a writ of possession and subsequently carrying out the eviction. It is important to note that although the High court enforcement process is significantly quicker than the county court process, it is considerably more expensive due to the shorter wait time. It is therefore worth considering the High court option if you require a quick eviction, especially when the arrears are very high.
What is the latest state of the Renters Reform Bill and when will it become law?
Frankly, nobody knows! The Bill had its second reading and has gone to the consultation phase having taken four years to do that and now there has been a realisation that the changes are going to have a direct effect on the ability of the Courts to deal with the changes.
The Bill has therefore been placed on temporary hold until the Courts can get operationally to a place where they can cope with the increased workload.
No one knows how long this will take having regard to the fact that it was not that long ago that Courts were being closed and amalgamated due to cut backs which in itself created massive problems for the Courts.
There’s no doubt it will become law at some stage but whether in the format as it currently is or with any changes from a new government, it remains to be seen but it was directly referred to in the King’s Speech at the opening of Parliament so it’s clearly still alive
Watch this space!
Commercial Landlord & Tenant Litigation
How can I recover unpaid rent from a commercial tenant.
Most lease agreements will include a forfeiture clause, which allows the landlord to re-enter the premises and take possession if the tenant defaults on the rent payment. Landlords must note that if the tenant settles the arrears, the tenant will have the right to apply to the Court for relief from forfeiture which may be successfully obtained. Therefore, landlords must consider the commercial and practical implications before deciding whether to exercise the right to forfeit, especially when there are other remedies that can be used.
A landlord that does not wish to forfeit the lease can consider other options, some of which include:
- Commercial Rent Arrears Recovery (CRAR)- this process allows the landlord to instruct an enforcement agent to take control of the tenant’s goods and sell them to recover the outstanding debt. There are prescribed notices that must be served on the tenant before this process can take place. Most importantly, this process can only be used to recover principal rent (all other arrears such as service charge or other sums cannot be recovered via this method) and can only be used for commercial tenancies and not mix use tenancies.
- Pursuing a guarantor: Depending on the terms of the lease, the landlord may be able to pursue the guarantor (if applicable) for the arrears.
- County court debt proceedings: The landlord may instigate court proceedings to recover the arrears. However, this can be an expensive and time-consuming process.
- Payment plan: The landlord may consider this option if they are keen to preserve the relationship they have with the tenant, particularly if the tenant has never been in arrears before and the default was due to a temporary issue.
How can I end a commercial lease with my tenant
There are different ways the landlord can end a lease depending on whether the fixed term has ended or not.
Unless the landlord and tenant have contracted out of section 24 -28 of the Landlord and Tenant Act 1954 prior to the commencement of the lease (i.e. the tenancy will not have security of tenure and the tenant will have no right to stay in the premises when the lease ends), the lease will continue after expiry until it is terminated. The landlord can therefore only terminate the lease by serving a section 25 notice (pursuant to the Landlord and Tenant Act 1954), in a prescribed form, not more than 12 months and not less than 6 months before the termination date specified in the notice. The notice must also state whether the landlord would oppose the tenant’s application for a new lease. Upon receiving the section 25 notice, the tenant can still apply to the court for a new lease. However, the landlord can oppose this by relying on one of the below 7 grounds (as set out in section 30 of the Landlord and Tenant Act 1954):
a. Tenant’s failure to repair;
b. Persistent delay in paying rent;
c. Substantial breaches of other obligations;
d. Alternative accommodation;
e. Sub-letting of part where higher rent can be obtained by single letting of whole building
f. The landlord intends to demolish or reconstruct and could not reasonably do so without obtaining possession; or
g. Landlord’s intention to occupy the holding for his own business or as a residence.
While the landlord can only rely on the ground stipulated in the section 25 notice, they can also use the process as an opportunity to end the lease and re-negotiate terms of a new lease.
Another way the landlord can end a commercial lease is by way of forfeiture provided the lease contains a forfeiture clause, which allows the landlord to forfeit the lease due to the tenant’s breach of the terms. The landlord must, however, be mindful not to waive their right to forfeit.
How can a commercial tenant request a new lease or end a current lease.
If the parties did not exclude the provisions of section 24 -28 of the Landlord and Tenant Act 1954 from the lease prior to the commencement of the lease, the tenant can serve a section 26 notice (pursuant to the Landlord and Tenant Act 1954) requesting a new lease. The section 26 notice must be served on the landlord between 6 and 12 months before the lease ends and must contain the tenant’s proposals for a new lease. If the landlord wishes to oppose the renewal, the landlord must serve a counter-notice within 2 months of service of the section 26, stating grounds for opposition. If the counter-notice is not served within 2 months, the section 26 notice is deemed to have been accepted and the landlord must grant the tenant a new lease on the terms proposed..
If the lease contains a break clause, the parties may end the lease early without repercussions. In the absence of a break clause, the tenant will have to wait for the lease to end to give up vacant possession before or on the date the lease expires.
Further, instead of a section 26 Notice, the tenant may wish to serve a section 27 notice (pursuant to the Landlord and Tenant Act 1954), which although not a prescribed form, must be in writing and served at least 3 months before the end of the term. It is important to note that the section 26 and 27 procedures are mutually exclusive. Once the tenant has served either a section 26 or section 27 notice, it cannot be withdrawn in place of the other. The purpose of the section 27 notice is to end the tenancy when the lease expires, and the tenant will not be able to renew the lease or remain in the premises after the lease expires.
When can I use a s146 (Law of Property Act 1925) Notice?
You can use a s146 Notice if the tenant has breached any term of the lease other than rent arrears and you wish to forfeit the lease. The service of a s146 notice is a mandatory step to forfeit a lease for non-rent related breaches. The landlord must specify the breach complained of, and if the breach is remediable, the notice must require the tenant to remedy the breach within a reasonable time, or it will be invalid. The notice will also require the tenant to pay compensation to the landlord for the breach.
Who is responsible for the maintenance and upkeep of the commercial property
Usually, the responsibilities of the landlord and tenant are clearly set out in the lease. Generally, commercial landlords are responsible for structural repairs (such as roof and exterior walls) while tenants are responsible for the maintenance and repairs to the property (such as plumbing, air conditioning).