...........BREAKING NEWS - SP LAW NOW OFFER A FIXED TARIFF OF FEES FOR LANDLORD & TENANT WORK, INCLUDING LETTERS CHASING PAYMENT; S8/S21 NOTICES; COMMENCEMENT OF COURT PROCEEDINGS ETC.................................

 

 

 

 

Renting out your property may seem like an easy source of income, but it can also be a legal minefield. If there are disagreements between you and your tenants, it can quickly become a drain on your time and resources. The best way to avoid this is to take the right legal advice at the start.

 

Prevention is better than cure. Before you even look for a tenant, we can help you decide what the terms of the tenancy will be and can build these terms into a written ‘tenancy agreement’ tailored to your needs.

 

If a dispute does occur, the law and procedure relating to the eviction of tenants is complex and landlords must tread carefully. The smallest error on a Notice can cause the Court to reject a claim for eviction, leaving the landlord to restart the eviction process from the very beginning.

 

Landlord’s must also be mindful of important recent changes in the law relating to rental properties e.g. Tenancy Deposit Schemes (please see below); Energy Performance Certificates.

 

SP Law Solicitors can deal with all areas of landlord and tenant law and are skilled in settling disagreements. If you do have a disagreement with your tenants, there are several ways SP Law can help. Whether it’s a simple case of checking your legal rights, or something more complicated such as adapting your tenancy agreement, negotiating a solution or even going to court, we have the knowledge and experience to support you.

 

Contact SP Law today on 01604 638 905 and get straightforward and expert advice and assistance on this complicated area of law.

 

A tenancy agreement is a contract between you and your tenant. This contract can be written or verbal. In England and Wales there is no law to say that landlords have to provide a written tenancy agreement, but it is a good idea to do so. Otherwise, if you have a dispute with your tenant about the terms of the agreement, it is your word against theirs as to what was agreed.

 

The main advantage of having a written tenancy agreement is that it sets out your rights and responsibilities as a landlord in a way that is legally enforceable. This keeps disagreements to a minimum because both sides know where they stand.

 

There are several types of tenancy agreement. Of these, the two most common types are the ‘assured shorthold’ tenancy and the ‘assured’ tenancy.

 

This is normally for at least six months and the tenant has fewer rights to stay at the end of the tenancy period agreed.

 

This is used mostly by housing associations and registered social landlords but occasionally by private landlords too. It sets out in what circumstances you can end the tenancy and gives the tenant far greater rights to stay on at the end of the tenancy period agreed.

 

Ideally, you should contact SP Law as soon as you start thinking about renting your property out. This will give you a clear idea of the terms to offer to any tenant you are considering.

 

Once appointed, we will explain your rights and responsibilities as a landlord. You then have the opportunity to explain your specific needs and concerns. This will help us to draw up a tenancy agreement that is a tailor-made to your needs. During this process, we will cover the following issues with you:-

 

What type of tenancy do you want? How many tenants will live in the property? What notice will you or your tenant need to give to end the tenancy? How long will the tenancy last?

 

What restrictions do you want to place on your tenants about keeping pets or playing loud music?

 

How much rent can your charge? When must the tenant pay the rent? What penalties are there for paying late? When can you increase the rent? Are Council Tax and fuel included in the rent?

 

What deposit must the tenant pay? Is the property furnished? If so, will the agreement include a list of furnishings and fittings? When should you return the deposit and in what circumstances can you keep it? Which Deposit Scheme is most appropriate for you and what information must be supplied your tenant? (please see below for further information in this regard).

 

Will you provide any services such as laundry, maintenance or meals? Will you be making separate service charges for these? What are your duties to make repairs?

 

What are your rights to enter property?

 

Once you have a tenancy agreement, make sure that both you and your tenant sign it at the start of the tenancy. You must give your tenant a copy of the agreement if they ask for it.

 

 

 

Introduction

The tenancy deposit schemes came into force on 6^th April 2007. The idea of the schemes is to safeguard tenancy deposits and to provide Alternative Dispute Resolution (ADR) methods of resolving disagreements in relation to deposits. From that date it has been necessary for every deposit taken by a landlord in respect of an assured shorthold tenancy to be protected by a tenancy deposit scheme. If it is not it will not be possible to serve a s21 notice and thus obtain possession.

The scheme applies to any deposit taken in relation to a new assured shorthold tenancy granted on or after 6 April 2007. It is not applicable to continuation tenancies, i.e. where the tenant stays in occupation as a statutory periodic tenant.

Compliance

Within 14 days of accepting a deposit the landlord must enter it into a government designated tenancy deposit scheme and provide the tenant with prescribed information.  

The landlord also needs to provide the tenant with prescribed information such as the name and address of the scheme administrator, procedures to be followed if a dispute arises etc.  

If that information is not given once again a s21 notice may not be given until the information is given.  

 

The Schemes

Presently, there is one custodial scheme and two insurance backed schemes.

The Deposit Protection Service (www.depositprotection.com) is the only custodial scheme which is free to join for landlords, but the actual deposit must be paid over to the scheme. The obvious disadvantage here is that the landlord loses control over the deposit monies.

The Dispute Service (www.thedisputeservice.co.uk) and Tenancy Deposit Solutions (www.mydeposits.co.uk) are insurance backed schemes, whereby the landlord registers the particular deposit with the service but does not have to hand over the deposit. There is a fee for these schemes.

Sanctions

As stated in the introduction, for so long as the requirements are not complied with a landlord will not be able to serve a s21 notice. Essentially the new defence available to tenants against landlords who do not comply with the scheme is merely a delaying measure. The landlord can then ensure he complies with the scheme and re-serve a s21 notice, which will then be entirely valid.

If a tenant is concerned that his deposit is not protected by a scheme and/or he has not been provided with the prescribed information and/or the scheme administrator does not confirm that their deposit is protected then he can commence proceedings against the landlord. If the court finds that the landlord is in breach then it must order up to three times the amount of the deposit to be paid to the tenant within 14 days as well as ordering the deposit to be paid either into the custodial scheme or to the tenant.

 

 

 

The best lawful method of evicting a tenant is to serve an appropriate Notice and then to obtain an Order for Possession from the County Court.

 

A landlord who attempts to remove a tenant from a property by force or harassment can be sued for compensation.

 

A landlord can proceed either under Section 8 or Section 21 of the Housing Act.

 

 

Generally speaking, the tenant must be guilty of a breach e.g. arrears of rent, causing damage to property or furnishings, causing a nuisance to neighbours or inducing the landlord to enter the tenancy by a false statement.

 

A Notice containing the prescribed information is served, asking the tenant to vacate the property, usually within 14 days (this can be less or more depending upon the basis of the claim).

 

If the tenant fails to vacate, Court proceedings are commenced. A claim for arrears of rent can be included.

 

The case is listed for a hearing before the District Judge. The hearing date is often 4-6 weeks after the Court proceedings are started (depending on how busy the Court is).

 

If the claim is brought on a mandatory ground (e.g. there are more than 2 months arrears of rent), then the Judge has no choice and must make an Order for Possession.

 

If the landlord is relying upon a discretionary ground (e.g. less than 2 months arrears of rent or damage to property or furnishings), the Judge will only make an Order for Possession if he considers it reasonable to do so.

 

 

This can only be relied upon if the initial fixed period of the tenancy has expired e.g. if the tenancy agreement was granted for 6 months, s21 proceedings can only be started after 6 months.

 

A Notice containing the prescribed information is served, asking the tenant to vacate the property. The length of the notice must be two rental periods and not less than 2 months (it is therefore best practice to serve this Notice not later than month 4 of the tenancy).

 

If the tenant fails to vacate, Court proceedings are commenced. A claim for arrears of rent cannot be included (although a separate debt claim could be issued).

 

There is usually no need for a hearing. Providing the Notice and Court papers are in order, the Judge will make an Order for Possession.

 

It is of course possible that the tenant may defend the case and also counterclaim against the landlord. The most common counterclaims relate to defective premises, harassment, unlawful eviction, failure to place the deposit in an authorised scheme. This can sometimes lengthen and complicate the eviction process.

 

However, if the Judge does make an Order for Possession, the tenant is usually given 14 days to move out. If the tenant ignores the Court order, an application must then be made for a bailiff to attend the property.