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Landlords Actions to End a TenancyThe following details the actions a landlord should take to obtain lawful possession of a property. The actions differ depending if the tenancy is periodic or fixed.
Fixed Term Tenancies
A defined period of agreement between the tenant and landlord to which they are bound. During this period possession proceeding s can only begin if the terms of the tenancy agreement have been breached. Rent Act Tenants cannot be subject to proceedings during the fixed term of the tenancy.
Periodic Tenancies
A periodic tenancy begins once a fixed term tenancy expires and unless another agreement is signed the tenancy will follow identical terms.
The rent payment schedule will determine the period of the tenancy:
Monthly fixed term payments will lead to a monthly periodic tenancy
Three monthly payments will lead to a quarterly tenancy
Annual payments will lead to a six-months periodic tenancy;
Rent Act Tenancy – Rent Act 1977
Definition – A tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling.
The amount of rent that can be charged is regulated by linking increases to the Retail Price Index. This is known as a Fair Rent.
Any rent increases requested by a landlord through the Rent Officer are to be registered one year and nine months after the effective date of the last registration. The new rent becomes effective after two years.
The protected period of the tenancy does not allow any rent increases.
A notice of increase is required to be served on the tenant if the landlord seeks to raise the rent. The notice should detail the amount and effective date of the new rent. A tenant is only liable for the increase once the notice of increase has been served. A tenant on housing benefit should take this notice to their housing benefit office.
There are two types of tenancy: A Protected Tenancy and a Statutory Tenancy.
Protected Tenancy
A fixed term tenancy based on a contract. The tenancy is ended with the terms of the agreement.
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Landlords defencesDefences
The following defences are available to any landlord who has had a claim for damages brought against them by a tenant.
- The landlord proves or had reasonable cause to believe that the tenant no longer occupies the property.
- It is reasonable for the tenant to return to the property after the landlord has offered reinstatement.
- If reinstatement of the tenant is offered prior to the tenant issuing a claim in the county court and the tenant unreasonably refuses, then any damages that may have been offered will be reduced.
- The tenancy has been surrendered by the tenant by for example handing back the keys or handing in a notice and he landlord has accepted the offer to end settle the tenancy.
- A third party is now renting the property.
Damages will be reduced in the following circumstances:
- The adverse conduct of the tenant as the previous occupier.
- If reinstatement has been offered (prior to commencement of legal proceedings) and it would have been (or would be) unreasonable for the tenant to refuse to accept the offer.
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Legal AidFinancial Eligibility
In order to qualify for legal aid a tenant should be in receipt of the required benefits and not have capital in excess of £8,000.00.
The qualifying benefits are:
Income Support
Income Related Employment and Support (ESA)
Income based Jobseekers Allowance (JSA)
Guaranteed State Pension Credit
Payments from NASS in respect of Immigration and Asylum
An employed tenant cannot have a gross income exceeding £2657.00. £222.00 can be added to this figure for a fifth and each subsequent child.
A tenant cannot have a disposable income of more than £773.00 per month after deductions.
There is a financial eligibility checker at www.civil-eligibility-calculator.justice.gov.uk
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legal fees- If a Local Authority has no TRO or he will not prosecute then the tenant can seek legal advice and representation for a private prosecution against the landlord. The Law Centre or Citizens Advice Bureau can offer free legal advice if the tenant qualifies for free legal aid. If the tenant does not qualify for free legal aid, then he/she can instruct a fee-paying solicitor to handle the case
- A legal aid solicitor can be found at: www.find-legal-advice.justice.gov.uk
- A fee-paying solicitor can be found at: www.lawsociety.org.uk
- If a landlord successfully defends a case against him/her using the defences above the tenant’s case may not be successful. Any claim depends on the facts of the case.
- The following forms should be used by a tenant to pursue in any case brought against a landlord for alleged harassment/illegal eviction:
- An Injunction Application (Form N16A) should be filled at the Local County Court with an attached witness statement/affidavit. The application fee payable maybe waived for those eligible on a low wage or welfare benefits using form EX160A.
- A Form N1 Claim Form and particulars of Claim setting out the course of action should accompany the Injunction Application.
- Any claim for harassment should have a completed Part 8 Claim Form (N208 Form) completed.
- A draft copy of the injunction order should also be included. This should be completed on an Injunction Order (Form N16).
Forms and detailed instructions can be found at www.justice.gov.uk -
Local Authority Inspection of a HMOA local authority inspection of a HMO will include all areas of the property. Particular emphasis will be placed on areas where hazards could result from sharing of the property.
Local Authority Enforcement Action.
The following areas of enforcement can be taken against a landlord who breaches their management duty in regards to a HMO.
Improvement Notice – Section 11-19, Housing Act 2004
A notice requiring the recipient to take remedial action against the notified hazard.
Prohibition Order - Section 20-27, Housing Act 2004
An order prohibiting the use of an area of a property for part or whole of its intended purpose or it’s occupation by a quantity or type of person.
Hazard Awareness Notice - Section 28-29, Housing Act 2004
A less serious occurrence with a notice to draw attention to desire for remedial action.
Emergency Measures - Section 40-45, Housing Act 2004
A local authority can take enforcement action to rectify areas that pose an imminent risk to tenants. This can take the form of prohibition from part of the property or removal of the hazard and recovery of costs incurred.
Demolition Orders - Section 46, Housing Act 2004
If a property is beyond repair and unfit for it’s intended use a demolition order may be issued. The owner will be required to demolish the property at their own expense but are able to keep the land for their own use.
Clearance - Section 47, Housing Act 2004
If the bad arrangement of properties leads to a situation (or the area contains 1 of more category 1 hazards) that is hazardous to the health and safety of the occupants a clearance area maybe established.
Disrepair in a HMO – The Management of Houses in Multiple Occupation Regulations 2006 No.372
Prosecution of both landlord and tenant can take place if either fails to maintain the property in a fit and proper way. If the landlord fails to comply with any notice to undertake repair works then the local authority may undertake the work and serve payment against the landlord.
Penalties for Failing to Licence a HMO
A landlord can receive a fine of up to £20,000 and a criminal record for operating an unlicensed HMO. Penalties also apply for allowing excess occupancy above that allowed in the licence. A person acting on the landlord’s behalf can face fines of up to £5,000 for each occurrence.
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Non-Financial Penalties
If a property is not registered as an HMO despite being subject to mandatory licensing the landlord cannot serve a Section 21 Notice requiring possession to a tenant.
A property will not receive a licence if:
The number of occupants is not suitable for the property
Management is not satisfactory
The landlord is not a fir and proper person
Rent Repayment Orders - Section 73, Housing Act 2004
Any private tenant living in an unlicensed HMO can claim back any rent paid to the landlord (max period of claim – 12 months) if an application is made the First Tier Tribunal – Property Chamber (Residential Property). www.justice.gov/tribunals/residential-property
A Rent Repayment Order will only be made to the tenant following a criminal conviction of the landlord for operating an HMO without a license or the local authority has made a successful claim to the Magistrates Court against housing benefit.
Application form (RR02) is available at: www.rpts.gov.uk/pubs_and_forms/publications.htm
The following will be required to be submitted with the form:
a. Evidence of successful prosecution for housing benefits of the landlord
b. Evidence of the rent paid to the landlord during the specified period
c. Agreements with any person nominated to represent the tenant(s).
d. Evidence of 5 or more claimants from the same property during the claims period unless already stated.
The above is subject to the local authority taking action against the landlord.
enants; Actions to undertake to address dissatisfaction with a HMO.
Does the property comply with the definition of an a HMO?
Does the property have correct licences – Contact local authority
Request inspection by local authority if repair works are not carried out
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Local Housing Allowance.- For tenants renting from private landlords housing benefit is calculated from the Local Housing Allowance rates. The rates depend on the area (Broad Rental Market Areas (BRMA)) the tenant is making their claim in.
- A tenant’s entitlement to Housing Benefit based on the Local Housing Rates can be worked out using the following information:
- How many people are resident in the property?
- If they are entitled to an additional bedroom for a person not resident with them, but who provides overnight necessary care for them or their partner.
- The postcode of the rentable property, or the local authority where the property is located.
- The following website can be used to work out a tenant’s bedroom entitlement:
- https://lha-direct.voa.gov.uk/BedRoomCalculator.aspx
- Housing benefit can be worked out using the Local Housing Allowance calculator at gov.ukIt should be noted that under Local Housing Allowance rules, housing benefit payments were capped in April 2012.
- If a tenant’s full rent is not covered by housing benefit due to the rate cap the tenant will have to pay the shortfall to the landlord. If the shortfall is unaffordable then the tenant can make an application for Discretionary Housing Benefit.
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