Most private residential letting involves the landlord and tenant entering into an Assured Shorthold Tenancy (“AST”) governed principally by the Housing Act 1988. Parliament’s intention under the Act was to strike a balance between a private landlord’s need to recover possession at the end of the term and a tenant’s right to expect a degree of security.
The Act therefore enables a landlord to lawfully obtain possession but only after following certain procedures and, if necessary, obtaining a Possession Order in the County Court.
ASTs are usually granted for an initial fixed term of either six months or perhaps one year. Although at the end of this period the fixed term expires (unless in the meantime renewed) it is a common misconception that the tenancy itself expires at this stage. In fact, unless steps have been taken (see below) to bring the tenancy to an end, the Act provides that the fixed tenancy is simply converted into a statutory periodic tenancy. This continues from month to month (or rental period to rental period) until brought to an end either by agreement or via a Court Order.
A landlord wishing to end the tenancy at the conclusion of the fixed term must deliver a Notice to the tenant under Section 21 Housing Act 1988 giving at least two months notice that he requires vacant possession at the end of the term. A Section 21 Notice can be sent at the start of the tenancy or at any time during the fixed term, although if delivered with less than two months to go before the end of the term the landlord will not be entitled to seek possession until the two-month notice period expires, even if this date falls beyond the end of the fixed term.
A Section 21 Notice is also used to end a “periodic” tenancy but careful attention must be given to the wording used and calculation of the correct period of notice.
If the tenant breaches the tenancy agreement (most commonly by failing to pay rent) the landlord can take steps to end the tenancy early by giving the tenant notice under Section 8 of the Act. This notice must set out the landlord’s grounds for seeking possession (rent arrears or other breaches) and provide the tenant with an opportunity to “remedy the breach”.
In all cases (unless the parties reach agreement) the landlord must then obtain a court possession order if the tenant refuses to vacate once the notice has expired. Landlords are strongly advised against taking any shortcuts as unlawful eviction can give rise to both hefty compensation awards and even criminal prosecution.
Book your place at Holmes & Hills LLP Solicitors’ free Landlord & Tenant Seminar, taking place on Thursday 14 July in Halstead. David Dixey, Landlord & Tenant Law legal advisor will be updating landlords on residential tenancy possession, updating them on other important areas of law, and changes to these, as well as highlighting recent case examples.
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