Our thanks to the hundreds of landlords and property professionals who took part in this webinar at the end of last year. We bring you the second set of answers to your questions.
Our thanks also go to Elliot Van Emden of Bridgewood Legal for co-presenting the webinar and providing answers to the questions below.
Does six months start with date of notice or date of service of notice?
It starts from the date on the notice. Bear in mind that you must allow a few days for service before expiration of the notice, so it is best to always allow about nine weeks for the notice.
Please confirm that an AST does not actually have to be in writing.
An AST can be written or oral. If it is oral, you will state the terms of the agreement on the court forms. This of course can be challenged (for example, if a deposit was paid or not). The same applies if a tenancy has been lost.
The "fine" for failure to register deposit is now discretionary - one to three times rather than 3 times as of right. Is that correct?
It would be up to a judge to determine what penalty is applicable after a trial. The general rule is that the more compliant you have been, the less the fine.
Would a S21 notice still be valid if a tenant complained directly to the council without complaining first to landlord/agent?
This is only applicable to tenancies starting after October 2015. A tenant must first allow the landlord to rectify any disrepair. This is a relatively new area of law and, as such, largely untested in many courts.
Can a section 21 notice still be served where a landlord is taking back a tenancy from a letting agent? The agent is to transfer the deposit to the landlord’s account with the deposit scheme.
Contact the relevant scheme and they will advise on the process. The key is it is not to unprotect and re-protect. You need further advice on this situation.
Would a section 8 notice served still be invalid if the deposit is not registered?
A section 8 would not be invalid if a deposit was not registered. However, the tenant can sue for three times the deposit amount, which may extinguish any arrears that exist and therefore bring it below 2 months’ arrears at the court hearing.
Are we allowed to keep the EPC, gas safety certificate and how to rent checklist permanently at the property?
We recommend serving these with the tenancy agreement at the beginning and getting them to sign it has been received.
What if the house is an HMO but the number of letting units is below the threshold for a particular local authority to require an HMO licence?
Different councils have different regulations for HMOs. You will need further advice on the particular circumstances of your case.
Is recorded delivery a valid form of service?
Yes, but I wouldn’t recommend it, as the occupant can refused to sign for it or they may not be in. Stick to first class post and personal service.
Can you have an email trail for confirmation to take rent from the deposit rather than a signature?
That would be fine – The key however is that it is clear there is now no deposit remaining and that it is agreed.
I have a tenant who was found for me by the local council who also supplied the deposit. I now have to evict him. The deposit was not initially registered as it came from the council and not the tenant. Where do I stand?
If it was a bond from the council, this does not need to be registered. If it was received and they are a 3rd party it should be registered – and your notice would be invalid. I suggest you seek legal advice as your case has many pitfalls.
Can you please clarify if the PCOL system is for section 8 or section 21 notices?
PCOL – Possession Claim Online - is for Section 8 only
Can the application to transfer to the High Court under S.42 be made by letter when applying to the County Court for the possession order
It can under the accelerated procedure, however that is very unlikely to be granted. It needs to be made orally at the hearing or via an N244.
Is there a S8 ground to use where tenant has left not giving written notice or paying last month’s rent?
A section 8 is for possession. The way you have explained the case – they have already left. You will need to trace them to their new address and start a small claim against them.
If an improvement notice has been received but a Section 8 notice has been served, I presume the landlord is running the risk of a counter claim?
Absolutely. Do section 21 if you can – especially if the agreement is pre-October 2015.
Do you still send the same section 21 form or is there a new form to send?
There is a new form 6A for all tenancies starting after October 1st 2015.
Can non-registration of deposit defeat section 8 notice?
Yes, it can, as if you are sued for 3 times the value of the deposit, this can extinguish any rent arrears claim thus meaning an order for possession would not be made. You would be better off returning the deposit or offsetting it against the arrears – and then serving a section 21 notice.
With an AST prior to 1st October 2015, a tenant in receipt of housing benefit and no deposit paid, will there be any likely problems in issuing a claim for possession when the landlord served a section 21 notice on 9 August 2015?
As long as it was outside the fixed term and they use the correct notice then no.
What's the position where the S21 notice is served on the tenant at the commencement of the tenancy and therefore before the deposit has to be registered if the deposit is then not properly deposited?
It would not be valid unless the deposit has been registered.
What is the position where a person other than the landlord (being a third party who is claiming to be the owner of the property but isn't) has granted a tenancy agreement, i.e. the landlord has not authorised the tenant's occupation of the property? How does the landlord go about evicting the tenant?
The superior landlord would have granted a lease to the landlord who then issued a tenancy to the tenant. This is perfectly common – you don’t need to be the owner to bring possession proceedings – you need to have a right to possession. Seek legal advice as certain notices are required to be served on different parties.
Could over service be viewed as harassment?
Does the new section 21 need be done if it’s a renewal AST, like you do every year anyway?
If it’s a renewal starting after 1st October 2015, it would have to be under the new format with all the requirements that are needed.
Is it possible to recover a landlord's court fees from the tenant's deposit?
It should be requested when you go to court that the deposit be released to be offset against rent arrears. You should also get a judgment for the costs of bringing the claim which will be added to the arrears.
If letting agents submit a claim on PCOL stating that they are acting on behalf of the landlord, do you think a judge can throw this out as not correctly claimed?
This claim will definitely be thrown out, as you cannot bring a claim in someone else’s name unless you are a solicitor.
Can you apply for a possession order and for transfer up to the High Court at the same time via your possession claim (Form N5)?
Not on the N5, but you should put it on the particulars of claim.
What if the tenant has allowed a homeless person to lodge, what can you do to ensure effective eviction?
You would still serve a section 21 on the tenant or a section 8 for breach of the tenancy under ground 12. A possession order made for possession against the property will mean eviction of anyone in it.
Alex Hill is the Evictions & Security Manager at The Sheriffs Office