John Spence

- What are the different types of residential tenancies?

- What is involved in protecting a deposit under a tenancy deposit protection scheme and avoiding problems with taking a deposit?

- What are the key terms that need to be in a residential tenancy agreement and how to avoid unfair tenancy terms?

- Dealing with tenants’ complaints about disrepair.

- Dealing with problem tenants.

- Recovering rent arrears.

- Terminating tenancies.

- Questions and Answers.

Important to identify type of tenancy Affects the extent of the tenant’s rights and the

rights of the landlord to increase rent, terminate the tenancy etc.

Rent Act Tenancies (Regulated Tenancies) Rent Act 1977

Granted before 15 January 1989 Some exceptions – e.g. certain shared ownership leases,

holiday lettings, lettings to students, resident landlords etc.

During fixed term – Protected tenant

After fixed term – Statutory tenant (provided conditions in Rent At 1977 are met)

Rent Control – “Fair Rent” Assessment by Rent Officer

Succession to a Rent Act tenancy – Schedule 1, Rent Act 1977

Assured Tenancies Housing Act 1988

Tenancies granted after 15 January 1989 but before 28 February 1997

Tenancies which cannot be Assured Tenancies, examples include: Those made before 15 January 1989 High Value tenancies: e.g. Rent value of more than

£100,000 per annum Tenancies at low rent Business tenancies

Tenancies which cannot be Assured Tenancies cont... Licensed Premises – for serving alcohol

Certain tenancies of agricultural land

Lettings to students by certain landlords

Holiday lettings

Lettings by resident landlords

Crown tenancies and tenancies let by certain public bodies

Rent Control

During fixed term – rent as agreed in tenancy

At the end of fixed term, tenant can ask the Residential Property Tribunal (England) or rent assessment committee (Wales) to assess the rent if he/she does not agree with landlord’s proposed increase.

Assured Shorthold Tenancies (“AST”)

Housing Act 1988

Most tenancies granted after 28 February 1997 will be AST

Tenancies which cannot be AST(same exceptions those that apply to Assured Tenancies)

End of fixed term becomes statutory periodic tenancy

Rent:

During fixed term – rent as agreed in tenancy

At the end of fixed term, tenant can ask the Residential Property Tribunal (England) or rent assessment committee (Wales) to assess the rent if he/she does not agree with landlord’s proposed increase. In practice does not apply as landlord can terminate the tenancy.

Contractual Tenancy / Common Law Tenancy

Generally residential tenancies which do not fall

within any of the earlier categories.

Most common contractual tenancy – one with a

rental value of more than £100,000 per annum

Tenancy Deposit Schemes

Any deposit taken in connection with an AST since 6

April 2007 MUST be protected and the tenant MUST be

served with prescribed information (given by service

provider) within 30 days of receipt of deposit.

Purpose: (1) protect a tenant’s deposit and (2) deal

with disputes between landlords and tenants

Only 3 authorised providers:

(1) The Deposit Protection Service

http://www.depositprotection.com/

(2) Tenancy Deposit Scheme

http://www.thedisputeservice.co.uk/

(3) My Deposits

http://www.mydeposits.co.uk/

Penalties for failure to register the deposit on time:

Can effect your right to recover possession of property

The tenant can apply to the Court for payment of a penalty.

If the tenancy is still continuing the Court must order:

that, within 14 days from the date of the order the deposit be paid to tenant (s. 214(3)(a), Housing Act 2004); or

that, within 14 days the deposit be paid into a designated account held by The Deposit Protection Service (only custodial scheme) – s. 214(3)(b) Housing Act 2004).

If the tenancy has ended, the court may order that the deposit be repaid (all or part of it) to the tenant within 14 days (s. 214(3A)).

The court must also order the landlord to pay tenant, within 14 days of the order, a sum of money equal to between 1 and 3 times the amount of the deposit (section 214(4), Housing Act 2004). This applies whether the tenancy is continuing or not.

Not retrospective – deposit taken before 1 April 2007 does not need to be protected

BUT: recent changes in legislation caused uncertainty. Superstrike Ltd v Marino Rodrigues

Some confusion as to how landlords are required to deal with existing deposits where the fixed term of a tenancy comes to an end

Re-registration of deposits and prescribed information.

Deposit taken prior to 1 April 2007 – position when fixed term comes to an end.

Deposit taken after 1 April 2007 – position when fixed term comes to an end.

Scheme providers have given some guidance but no idea how Courts will decide.

Fixed period

Fixed rent

Termination provisions

Landlord and tenant repairing and other

obligations

Guidance by Office of Fair Trading (OFT) Copy at:

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

OFT – duty to consider any complaints

Ensures that terms are fair

Requirement of good faith

Balance of landlord’s and tenant’s rights and obligations

Core terms – rent, length of tenancy and details of property

Cannot exclude liability for injury, condition of property

Cannot exclude provisions of tenancy deposit requirements on AST

Governed by:

(1) Express terms in the tenancy agreement –

both landlord’s and tenant’s obligations relating

to repair

(2) Section 11, Landlord and Tenant Act 1985 –

landlord’s implied covenant to repair

(3) Section 4, Defective Premises Act 1972 –

landlord’s duty of care to anyone who may be

affected by defects in the property

(4) Common law nuisance and negligence claims

Housing Disrepair Protocol

Breach of express terms of tenancy

agreement

Common law nuisance and negligence issues

Complaints received by third parties

Rent Act Tenancy

Rent registered with Rent Officer

Letter before action – no standard form of notice

Court proceedings for recovery

Assured Tenancy

Rent registered with Rent Officer

Letter before action – no standard form of notice

Court proceedings for recovery

Assured Shorthold Tenancy

Letter before action – no standard form of notice

Court proceedings for recovery

If also seeking possession – need to serve prescribed notices pursuant to Housing Act 1988

Common law / Contractual tenancy

Letter before action – no standard form of notice

Court proceedings for recovery

Rent Act Tenancy

At the end of the contractual term, the tenancy

will continue as a statutory tenancy.

To recover possession, the landlord must obtain a

court order for possession.

Grounds - Schedule 15, Rent Act 1977

Assured Tenancy

During fixed term:

Either by exercising a break clause (if there is one)

Breach by the tenant of specific grounds in Schedule 3,

Housing Act 1988

End of fixed term: Tenant has right to remain

Landlord can only obtain possession by way of Court Order if he is able to establish one of the grounds in Schedule 2, Housing Act 1988

Assured Shorthold Tenancy During the fixed term

- If there is a breach – by serving a Section 8 Notice pursuant to Housing Act 1988 (prescribed form)

- Specific grounds in Schedule 2, Housing Act 1988 only

- If no breach – by serving Section 21 Notice, Housing Act 1988 (minimum notice period of 2 months to take effect after the fixed term expires)

At the end of the fixed term If relying on a breach – Section 8 Notice (notice period depends on ground

relied upon)

If no breach – Section 21 Notice - minimum 2 month notice – careful consideration as to when the notice can be served, when it must expire and form of notice

Cannot serve a Section 21 Notice if a rent deposit was taken and not protected

Common Law / Contractual tenancy During the fixed term

If there is a breach – by serving notice concerning the breach

At the end of the fixed term Notice to Quit

In all residential lettings: Protection from Eviction Act 1977 applies

Criminal offence for landlord to evict tenant without a Court Order for Possession

Even where Possession Order obtained only County Court Bailiff can evict the tenant

Any questions?

John Spence, Solicitor

Direct Dial: 020 7288 4788

johnspence@boltburdon.co.uk

Yezdan Izzet, Solicitor

Direct Dial: 020 7288 4737

yezdanizzet@boltburdon.co.uk

BOLT BURDON

Providence House

Providence Place

London N1 0NT

www.boltburdon.co.uk