Whatever the reason for a landlord no longer wanting to let to a tenant, landlords cannot lawfully evict tenants from a property without a Court Order. If they do, they may be committing an offence of unlawful eviction. It may be possible to agree that the tenant leaves the property but if it is not, the landlord will have to apply to Court for a possession order.
Before a landlord can apply for a possession order, the landlord must serve a notice upon the tenant stating that the landlord requires the tenant to vacate the property by a certain date, failing which the landlord will apply to court for a possession order. The length of notice will depend on the reason for requiring the tenant to give up the property: reasonable notice (at least 2 weeks’) where the tenant is in breach of the conditions of the tenancy (including arrears of at least two months’ rent); or 2 months’ notice, providing any fixed term has expired, where the landlord requires possession for other reasons which do not have to include a breach by the tenant of the terms of the tenancy. If the tenant is in breach of any of the conditions of the tenancy, it is important to tell them which conditions they are in breach of.
The route of providing at least two months’ notice, if any fixed term has expired, can be the more guaranteed route of recovering possession from the tenant although can still take some time if the tenant does not wish to give up the property. There are strict rules however: the landlord must have a valid Energy Performance Certificate for the property which has been provided to the tenant. Such Certificates are usually valid for a period of 10 years. From April 2018, this requirement will additionally ensure that rented properties meet the minimum energy performance level necessary of not less than E rating. The landlord must also have an up to date gas safety certificate for the property, a copy of which must also have been provided to the tenant. This check is required to be carried out annually. And finally, if there is a deposit that has been taken for the property, whether as security for non-payment of rent or other breaches of the tenancy, that deposit must have been protected either by an approved insurance backed or deposit scheme within 30 days of receipt of the deposit. There are strict requirements about information regarding the protection of those deposits which must also be provided by the landlord or agent to the tenant, and the time for providing it. If a landlord has not taken these steps and provided this information, the landlord will only be able to apply to evict the tenant if the tenant is in breach of a condition of the tenancy agreement which entitles the landlord to recover possession, which may include arrears of rent exceeding two months’ arrears.
There are further implications of failing to protect a deposit, which has been a requirement since April 2007. Whist there were transitional provisions which applied when the protection of deposits first became a legal requirement, the situation is that if the deposit has not now been protected within 30 days of receiving it, irrespective of when the tenancy first started, not only will a landlord be prevented from applying to recover the property if the tenant has not breached the tenancy terms, but the tenant may apply to the Court in relation to that failure to protect the deposit. Such an application by a tenant will result in an order from the Court that the landlord pay to the tenant a sum of up to three times the amount of the deposit, as well as being required to return the deposit to the tenant. If you are a landlord who holds an unprotected deposit, you have no right to do so and you are committing an offence under the Housing Act 2004 which provides for the protection of such deposits. Late protection of deposits is no longer available as an option. Returning the deposit to the tenant will not guarantee safety from these sanctions but at least may entitle the landlord to then serve two months’ notice to recover possession of a rented property.
If the tenant does not vacate by the date stated on the notice, an application can be made to Court for a possession order. If the court grants an order, it will state that the tenant must vacate by a set date. If the tenant fails to do so, it is wise to then instruct bailiffs to evict the tenant from the property and ensure that a locksmith is in attendance on the date of eviction to secure the property by changing the locks.
If in doubt, seek legal advice.
For additional information on landlord and tenant matters please contact Frances Woods on 01905 721600