Articles on Legal Issues

Residential Short Hold Tenancies for Landlords - FAQ

Q: What does an Assured Shorthold tenancy mean?

A: It means that for the first 6 months of the tenancy of that tenant you cannot get a possession order from the court against them unless they are in arrear or otherwise in breach of their agreement. If you can convince a Court that they are in at least 8 weeks or 2 months arrears with their rent (depending on whether they pay rent weekly or monthly) then the court MUST give you an order for possession. But bear in mind that it takes about 6 to 8 weeks to go through the court process. This is variable according to how busy the courts are at any one time. It is therefore often better to wait and serve a 2 months notice to quit to which there is NO DEFENCE.  If they are in arrear for less than this then if you convince a court of this then the court MAY give you a possession order. This is a bare summary. Ask us if you want comprehensive advice on the grounds for possession.

Q: I have let my flat or house without a written agreement or I have bought flats or a house subject to a sitting tenant and there is no written agreement. Does it matter?

A: Not for most purposes. If the premises were first let to that tenant after 1996 then the tenancy is automatically an “Assured Shorthold” tenancy unless you have an agreement which states that it is some other kind of tenancy (Housing Act 1996). Often the Housing Benefit Department require a written agreement for no good legal reason except that they may require evidence that it is a genuine tenancy before they pay Housing Benefit.
However you WILL need a written tenancy agreement signed before the tenant goes into possession if you want to use the “Accelerated Possession” procedure in the County Court (see below).

Q: How much notice do I need to give a shorthold tenant?

A: 2 months if you are not relying upon any particular grounds. 2 weeks for arrears of rent. Otherwise it varies according to the grounds. Please ask for advice if in doubt.

Q: When should the notice expire?

A: The 2 months notice given during the first 6 months should expire at the end of the 6 months. Such notice can be given at any time up to the end of the 4th month. If you give the 2 months notice AFTER the end of the first 6 months it must expire on the last day of a period of the tenancy. There is a form of words to cover you if you pick the wrong date. Ask us for advice on this. It can be tricky.

Q: Should the notice be in any particular form?

A: Not for Shorthold tenancies. It can be in the form of a letter telling the tenant that you, their landlord, require possession of the property on the specific date. If in doubt ask us.
If you get the date wrong or the notice does not say the right things, the notice can be invalid and you will probably have any proceedings dismissed with the loss of the court fee (currently £150) and possibly you will have to pay the tenants legal costs (if any). Simple advice on these matters from us will cost little in comparison.
Q: If my tenant(s) are in arrear with rent can I change the locks, switch off the electric, gas or water, or take back possession?

A: No. All these things constitute harassment of the tenant or unlawful eviction which are criminal offences. You cannot take possession of residential premises from a tenant for any reason even if you are justified without a Court Order. The tenant can claim damages from you if you do any of these things. Blackpool Borough Council employ a “Harassment Officer” whose sole job it is to prosecute Landlords in the criminal courts who breach these rules.

Q: If it appears that my tenant is no longer living in the flat/house, can I simply change the locks and re-let or sell it?

A: If a tenant has surrendered possession, abandoned a tenancy or given back possession to you as their landlord, then you need to be able to persuade a court of that. Sometimes tenants can go away for a prolonged stay with a relative (maybe while they are sick) or on holiday. Even if they are in arrear with rent you can be guilty of unlawful eviction or harassment. There is no hard and fast answer. You run a risk of being ordered to pay several thousand pounds of damages to a tenant and his costs (even if s/he is legally aided) if you change the locks without evidence that the tenancy has been surrendered by the tenant. If your tenant offers to surrender or leave voluntarily, get them to give you confirmation in writing signed and dated by the tenant and specifying the date they intend to leave.

Q: My tenant has left the property leaving the house or flat full of their belongings. Can I simply throw their belongings away? They look like they are worthless rubbish anyway.

A: No. These are still the property of the tenant. What maybe worthless rubbish to you may be a valuable old family heirloom to your tenant. Even if your tenant has genuinely left the house or flat, you should keep his/her belongings for them for a reasonable period. Pin notes to the front door or write to them if you know their new address, telling the tenant to collect their belongings from you. Send such a note to their relative if you know where they live. Give them your telephone number and/or address so they can do so. Keep copies of the note(s) as future evidence for a court that you have acted reasonably and tried to return the belongings to the tenant.
If you do not, they can sue you for damages which could be substantial. Your tenant may be able to obtain Public Funding or Legal Aid. If they do, even if you fight them in court and win, you will probably not be able to recover any of your legal costs or expenses from them.

Q: How much will it cost for John Budd & Co to deal with the possession proceedings?

A: It’s difficult to be precise until we know what we will have to do. It is based on time spent. Generally if all goes according to plan with no complications and the case is not defended by the tenant we usually find the charge is £700 approximately and this does include the £150 court fee for issuing proceedings. It is likely to be cheaper if you are prepared to attend any court hearing and we just draft the papers. It is cheaper to use the Accelerated Possession procedure.

Q: How long does it take?

A: We usually find it will take about 6 to 8 weeks to obtain a “Possession Order” but this depends upon how busy the court is. Usually the tenant will leave on the day which is stated in the Court Order to be the day when the tenant will give up possession. This cannot be more than 14 days after the Order unless the court is satisfied that the tenant will suffer exceptional hardship, in which case it can be up to a maximum of 6 weeks, but no longer. If the tenant does not leave on or before the possession day, then you will need the Court Bailiff to enforce the order by physically evicting the tenant. There is another court fee for this (called a Warrant of Possession) and you will need to pay a locksmith as well to attend on the day and change the locks.

Q: What is the “Accelerated Possession Procedure”?

A: This is an application for possession on paper and dealt with without a formal court hearing if all is in order. You must file a specified form attaching a copy of the signed written tenancy agreement which must have been entered into before the tenant entered into possession. You cannot claim any arrears of rent although you can bring separate proceedings in the County Court for arrears. It is supposed to be quicker and it usually is, but sometimes when the court is particularly busy it isn’t!

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