Following on from our recent webinar on the eviction of tenants from residential property, we bring you part 2 of the answers to the many questions raised in the webinar.
Our thanks to Tim Briggs from LegalMentor, both for being co-presenter in the webinar and also for preparing the answers to these questions below.
What sort of notice should be served in the case of a live-in landlord, as this is not an assured shorthold tenancy?
Normally this will be an ‘excluded’ tenancy when someone lives in your own home sharing facilities (a tenancy excluded from the provisions of the Protection from Eviction Act 1977), and although the requirements to give notice are slightly fiddly, you do not necessarily need a court order and court proceedings.
However, be careful before assuming you have an excluded tenancy, as if you give your live in tenant a tenancy or a licence they will be binding according to their terms. As part of the ‘Investigation’ we do at the start of the process, we can help you work this out.
With a joint tenancy where one tenant has served notice to quit but the other remains in possession does the Court have any discretion to allow the remaining tenant to remain in possession?
An assured shorthold tenant on a joint tenancy can end the tenancy by serving a notice to quit on the landlord, which does not need to be in any specific form, and does not even require the other tenant's consent.
The court has a number of case management powers it can exercise, depending on the circumstances. But at the end of the day, so long as one tenant in a joint tenancy has followed the terms of the tenancy agreement which set out how the tenant has to give notice, it is unlikely that the other tenant or the court would be able to challenge the validity of the notice.
In relation to old tenancies where the new Form 6A is used, do the transitional arrangements mean that the notice has to expire on a term date or not?
No. For tenancies before 1st October 2015 the new Form 6A does not have to expire at the end of a period of the tenancy, unless the tenancy agreement requires it to do so.
Does a section 21 notice have to be served upon ALL tenants?
It needs to be addressed to all tenants who are on the tenancy agreement.
What’s the difference between the accelerated and standard procedure? When do you use each one?
You have to weigh up all sorts of considerations that are too numerous to go through here. At LegalMentor we will make these considerations in our ‘Investigation’ at the start of the process when we gather together all of the papers.
In simple terms, the accelerated claim is usually used on a ‘no-fault’ basis when there are no rent arrears, usually with no hearing.
When there are rent arrears that you have a chance of recovering in future, for example the tenant has a job but just refuses to pay, the usual procedure would be to bring a standard online claim for possession which includes a money judgment for the arrears, and both heads of claim would be dealt with at the hearing at the same time.
However, depending on the factual circumstances there may be all sorts of tactical reasons for bringing one claim rather than the other. This strategic decision is one of the things that tenant eviction companies consistently get wrong, so make sure whoever you use publishes their success rates on their website, otherwise the landlord always ends up paying more (we get possession at an unprecedented 93% of our first hearings).
One advantage of a standard online claim done properly is that a transfer to the High Court for some or all of the enforcement can be pleaded in the particulars of claim. If this is done properly, a transfer to the High Court for quick enforcement is made a whole lot more likely.
Is delivery of documents pre tenancy via email acceptable, particularly if a read receipt is obtained? Can you send them a link to the rent booklet, rather than give them the booklet?
There is no specific case law on this that I am aware of, but there is similar case law on deposit information that requires you to actually give tenants all the equivalent documents in hard copy, rather than just a link.
So for safety we suggest you would give it to them in a hard copy, and get the tenants to sign, date and put the time on a letter listing what documents have been given to them.
Can you give the prescribed information to the tenant before the deposit is taken and protected?
If you do that, you will only be giving them some of the prescribed information as you will not have completed all the requirements to give them ‘the prescribed information’ (in full).
For example, you may give them a booklet, but the prescribed information will also require you to give them the deposit certificate and any documents accompanying the certificate. So best to give it all at the same time.
When a new AST is created with existing tenants, do you have to submit the deposit again? What should you do regarding the deposit if the rent is increased?
Yes you do have to submit the deposit again, because it is a ‘new’ fixed term tenancy. In effect you are taking the deposit money from the old tenancy and registering it for the new tenancy. Same money, new tenancy, requiring a new registration.
You would do nothing with the deposit if the rent is increased, because any rent increase does not affect the value of the deposit.
Can the landlord give a longer notice period than 2 months on the 6a form, as long as it’s not more than 6 months?
Yes, Section 21 Notice has to be ‘at least’ 2 months, more is ok. But as you rightly say, not too much more.
What happens after the 6 months is up on a section 21?
Once the 6 months is up on a Section 21 that notice becomes invalid and you need to serve a new one.
If the tenancy agreement is silent on service provisions, must the notice be served by hand?
‘By hand’ generally means leaving a notice ‘addressed at the property’, which is not the same as the personal service you need when the tenancy agreement is silent on service provisions. ‘Personal’ service means put literally into the hand of the tenant, which can be a drama if they keep running away or hiding. However, the court will often make a judgment on whether, on the balance of probabilities, the notice has been received by the tenant.
What other grounds can we rely on to obtain eviction other than sections 8 and 21? How quick is the process for these?
Most other grounds are discretionary and require a ‘fact-finding’ process carried out by the court to establish whether those grounds are made out. Which can take time. So mostly best to avoid, although sometimes there are good reasons.
How long is the section 8 valid for?
It is valid for 12 months.
David is an authorised High Court Enforcement Officer and our Director of Corporate Governance