Whilst we are not privy to the facts of this case, it highlights the sometimes strained relationship between landlord and tenant where allegations of nuisance are made.
When a landlord receives a complaint that their tenants are causing a nuisance or acting inappropriately they need to investigate the complaint. If they don't they may face prosecution themselves from, say, the local authority. The landlord's risk of prosecution depends on the nature and extent of the behaviour but they should, at least, investigate to see if action should be taken.
Under the Housing Act 1988 the landlord can seek possession of a property if they rely on various grounds. This so called fault based possession is pursued by initially serving a Section 8 Notice.
Ground 14 can be used in cases of anti-social behaviour committed by the tenant or any other person living with the tenant or visiting the property if that person has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing visiting or otherwise engaging in a lawful activity in the locality
Ground 12 can also be used where any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed. A tenancy agreement may include clauses relating to the tenant's behaviour.
In order to seek possession so as to rely on these grounds a Section 8 notice should be served. That notice provides a time period and date after which possession proceedings can be issued in the County Court by the landlord.
The time period required if relying on Ground 12 is 2 weeks. If relying on Ground 14 only, proceedings can be brought as soon as the notice has been served. Either way Court proceedings are required so as to obtain a Possession Order. This Order is needed so as to legally be entitled to terminate the tenancy and gain possession. Without that Order, or without the tenant vacating voluntarily, the landlord cannot evict the tenant unless they want to risk criminal and civil claims against them for unlawful eviction.
In the case here the landlord emailed the tenants after receiving further complaints and said "if this continues we will have no choice but to issue a Section 8 notice, which will give you two weeks' notice to vacate". If, after service of the Section 8 notice, the tenants failed to vacate then Court proceedings would need to be issued.
The Court would then need to decide if the behaviour complained of happened or not and, if so, whether the behaviour was sufficient to warrant a possession order being granted. The Court has a discretion in this respect and, as such, there is no guarantee that the landlord would gain possession even if the actions and behaviour complained of were found to have taken place.
The extent of the alleged behaviour and the evidence to hand for the landlord would need to be assessed carefully before relying on the same in Court.
If you require assistance in considering an possession claim please contact me.
Whilst the article highlighted below is aimed at tenants. the suggestion that photographs should be taken at the start and end of the tenancy equally applies to landlords.
Photographs, along with a detailed inventory, will assist in evidencing the state of the property prior to the tenant moving in and at check out. This will help to establish the level of damage, if any, for which the landlord and/or tenant are responsible for under the tenancy agreement. This, in turn, will reduce disputes relating to the tenancy deposit.
If there’s a dispute at the end of the tenancy over deductions made from the deposit, the scheme adjudicates the matter.
If you want to make sure you get your full deposit back, ARLA Propertymark asked landlords to reveal the most common reasons why they may hold back some or all of the money to cover various costs:
As discussed in a my previous article there are two ways to extend your lease - using the statutory route or by agreement.
If you extend by agreement, you usually pay a lower premium if you agree to pay a higher ground rent. However, be careful when you agree to an increased ground rent because it can make your lease more difficult to sell and mortgage.
Once the ground rent exceeds £250 per annum (outside London) or £1000 per annum (in London), the lease becomes an assured tenancy and is therefore subject to the rules relating to those types of tenancies. This includes a right for the landlord to gain possession when the rent arrears exceed 8 weeks or 2 months if the rent is paid monthly. This right is mandatory which means that the Court has no choice but to grant the possession order.
This right overrides any mortgagee protection clause in a lease. A mortgage protection clause requires the landlord to contact the lender before taking action to take possession of the property for rent arrears.
Understandably lenders are therefore becoming more wary of accepting high ground rents.
So what can you do if you have a high ground rent?
We are currently helping leaseholders who own the freehold title to their flats (through a limited company) amend their lease to prevent the lease being rejected by lenders in the future because of this situation. If you want us to help you - whether you are a landlord or tenant - please get in touch.
The government is at last considering a problem that affects many contractors and sub-contractors and blights the construction industry, namely, the issue of the non-release of retentions. I know from personal experience of clients who have suffered major issues because retentions are not released to them at an appropriate time. This consultation is looking at issues such as:
. How many parties have lost retention monies due to contractor insolvency.
. How some employers have unlawfully made payments of retentions conditional upon performance of obligations under other contracts.
. Non-payment of retentions which is affecting contractors and other subcontractors further down the supply chain.
The consultation is looking at payment of retentions in practice, whether they should be a limit on the time that retentions can be held together with possible alternatives like project bank accounts, escrow accounts and retention deposit schemes.
This is something that causes major issues for people in the construction industry and a solution to these issues would help all of us in the UK.
Department for Business, Energy & Industrial Strategy
24 October 2017
A consultation on the practice of cash retention under construction contracts
This consultation closes at
11:45pm on 19 January 2018
The purpose of this consultation is to seek information on the practice of cash retention under construction contracts and gather views on the findings of the supporting documentation.
The consultation is relevant to any party to a commercial construction contract as defined by the construction contracts legislation. It is also relevant to adjudicators, arbitrators and lawyers. While this consultation concerns construction specific legislation it may also be relevant for those with an interest in prompt payment more generally and to insolvency practitioners. The legislation does not apply to residential occupiers.
The requirement to protect a tenancy deposit taken for an assured shorthold tenancy in England and Wales was introduced on 6 April 2007. Confusion and lack of knowledge of the various amendments to the legislation since 2007 continue to cause landlords and letting agents problems. Some of the problems are touched on in the article quoted below but the main issue upon which I get instructed on is not a claim, by tenants, for a deposit penalty (although plenty of such claims continue to be made) but is the difficulties landlords and agents face in seeking possession.
Failure to address the deposit requirements have an adverse effect on the validity or effect of possession notices; whether it be a Section 8 or Section 21 Housing Act notice that the landlord, or agent, seeks to rely on. This can lead to an expensive delay in obtaining possession.
Bury & Walkers LLP can assist landlords and agents in ensuring possession notices are valid so that possession can be efficiently obtained. Feel free to contact us to discuss.
In England and Wales, there are three such schemes – the Tenancy Deposit Scheme, MyDeposits and Deposit Protection Service. They require the landlord or letting agent to serve Prescribed Information (details of the scheme and the tenancy) to the tenant within 30 days of receiving the deposit.
The article quoted below paints a gloomy picture for tenants and leaseholders. Whilst some problems have been identified with the current system it is not the case that tenants and leaseholders have no current rights or recourse.
Leaseholders do have the right to challenge poor services and unreasonable charges in the First-Tier Tribunal (Property Chamber), previously known as the Leasehold Valuation Tribunal.
Tenants who hold long leases in flats therefore have protection relating to service charges and management. Bury & Walkers LLP have expertise in dealing with service charge disputes and proceedings within the Tribunal.
Tenants may wish to extend their protection by seeking a “right to manage” which gives leaseholders the collective right to manage their building. The landlord’s consent to this is not required and there is no requirement to show that there has been mismanagement by the landlord or a managing agent. The process relating to the right to manage can be complex but has obvious benefits giving leaseholders the right to control the management and administration of their building. A flat within a building which is managed by tenants is a more marketable property.
We have experts who can assist in setting up the right to manage company (RTM company) and guide you through the right to manage procedure.
On Wednesday it announced plans for a crackdown on property agents in both the leasehold and private rented sectors.