It is understood that bailiffs are being required to carry the correct PPE before completing evictions, which means a huge reduction in case load.

One of the bailiff companies involved have said that they are running a “skeleton” service until normal service resumes, which means that if a landlord wants to evict a tenant quickly, they will have to transfer to the High Court which is considerably more expensive.

One of London’s main courts, the Central London Court have said that bailiff appointments have been suspended for the near future.

This is an even bigger setback for landlords who are not only having to deal with the upcoming changes in legislation to evict tenants but are now being faced with extensive delays and expense to evict a tenant- particularly if that tenant is not paying rent!

It is not known whether this is affecting other courts at present, but it would not be surprising if this trickled down to the other courts in due course.

If you are a landlord who needs assistance with evicting a tenant, or requires advice , please do not hesitate to contact our expert team.

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The documents and requirements are as follows:

1. Protect the deposit in a Government Scheme;
2. Provide the tenant with the information of the scheme in accordance with the legislation;
3. Gas Safety Certificate;
4. Energy Performance Certificate;
5. Smoke alarms fitted on every floor, which should be checked at the beginning of the tenancy and confirmed to be working;
6. Carbon monoxide alarms fitted in every room with a solid fuel burning source, which should be checked at the beginning of the tenancy and confirmed to be working; and
7. How to Rent Guide.

One of the biggest issues for landlords is in relation to the deposit. Failure to comply with the legislation will prevent the landlord issuing a notice to evict the tenant at the end of the term (section 21) and can give your tenant the right to sue you for the return of the deposit and up to 3 times the amount of the deposit by way of compensation, which can affect a claim for rent arrears (section 8).

If the tenancy began after 6 April 2007 and is an assured shorthold tenancy landlords are required to protect the deposit in a government backed scheme. This enables tenants to retrieve back their deposit at the end of the tenancy if the property is undamaged and the tenant has complied with the tenancy agreement. Importantly, if the deposit is paid by instalments, the money should be protected as and when each instalment is paid. The landlord should not assume they can wait until the full amount is paid before protecting it.

For tenancies being created now, tenants and landlords should be aware the landlord has 30 days from the day the deposit was paid to secure it and to serve the prescribed information. It is no longer the case that this can be rectified later. If you are a landlord who has not secured the deposit in time or you are a tenant who has not received notification of the security of your deposit please contact one of our landlord and tenant specialists to discuss your options. If the tenancy is an older tenancy different rules may apply and specific legal advice should be sought.

Without following the correct procedure, and providing tenants with all the necessary documents at the beginning, problems are likely to arise at the end of the tenancy: s21 notices are not valid if the relevant information and documents were not provided. This will effectively delay an eviction process by quite some time and in some cases may prevent you being able to evict your tenant at all. Additionally, if a s8 notice is served to evict the tenant on grounds of rent arrears and the deposit is not protected then the tenant could be awarded three times the amount of the deposit together with the return of the deposit by a court. It is likely this will then be deducted from the arrears so the landlord would not receive the amount of rent owed back and it may extinguish the right to possession at all.

If you have any concerns regarding the setting up of a new tenancy or compliance with an existing tenancy please contact John  Ward on 024 7653 1532.

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There are essentially three types of notice: a section 8 notice, a section 21 notice, and a notice to quit. Which notice you will need depends on the type of agreement you have and the reason for the eviction.

Section 21 – No fault eviction

If you have an assured shorthold tenancy agreement and the fixed term has come to an end then you can serve a section 21 notice to require them to leave the property. If the property is within the fixed term then you can send the notice requiring them to vacate at the end of the fixed term.

You must not serve the notice within the first 4 months of the fixed term tenancy and have to give a certain amount of notice. If the rent is paid monthly then you must give them 2 months’ notice. If the rent is payable other than monthly the notice period will be different and you should seek advice before serving a notice.

It used to be that the notice only needed to contain certain words to be valid but tenancies created after 1 October 2015 must be in the prescribed form. If you serve a notice which is not correct the matter may progress all the way to consideration by the court, you having paid the court fees, and then your claim will be struck out and the process will have to be started from the beginning.

If the tenancy began after 1 October 2015 you cannot serve a s21 notice if the tenant has made a complaint in writing about the condition of the property, you did not provide an adequate response within 14 days, the tenant made a complaint to the local authority and the local authority has served a notice in response.  This is called a retaliatory eviction. You also can’t issue a s21 notice if you have not complied with the requirements to send certain documents at the beginning of the tenancy, such as the How to Rent booklet and an Energy Performance Certificate. There are complex rules regarding the requirement to secure a tenancy deposit and if you have not complied with these you will not be permitted to rely on a s21 notice. If your property requires a licence (such as for multi-occupancy) and you do not have that licence then a s21 notice cannot be served. If you are in any doubt as to whether or not you are entitled to serve the notice please contact us for further information.

If the tenant doesn’t vacate after the two months’ you can issue proceedings which can be either accelerated or via the normal issuing process.  Click here for more information.

Non-s21 Notice to Quit

This is unlikely to be the correct notice in formal residential tenancy agreements. If you have a lodger or someone occupying a property but not with exclusive occupation it may be they have a licence. Whether it is a licence or a tenancy will be fact specific and you should seek legal advice if you wish to send a non-s21 notice to quit.

Section 8 Notice – Breach of tenancy agreement

This is the notice you need if the tenant has breached a term of the tenancy agreement or you require the property for your own use. This can be served inside or outside of the fixed term. There are currently 21 grounds on which you can evict a tenant – some are due to their breaches and some are for non-fault reasons, such as if the property has been your home before and you wish it to be again.

The most common reason for issuing a s8 notice is rent arrears. You can rely on grounds 8, 10 and 11 depending on the amount of the arrears. We would recommend that your notice states all of the possible grounds to insure you against clever tenants who pay just enough to make some of the grounds invalid.

If you are issuing the s8 notice within the fixed term, the Housing Act 1988 requires you to have stated in the tenancy agreement that you will rely on them at a later date and not all of the grounds can be used during the fixed term.

You must send the notice in the format set out by legislation. This format changed in December 2016. If you fail to issue the correct notice and the matter proceeds to a court hearing you are likely to have your claim thrown out and you will have to start from the beginning. You may also be held liable for any legal fees your tenant has incurred as a result of the incorrect notice.

So, which notice?

Section 8 notices for rent arrears allow you to issue a claim after 2 weeks whereas a section 21 notice requires you to wait 2 months. If the tenant is in at least 2 months’ of arrears we would usually recommend sending at least the s8 notice. You can send both notices at the same time to hedge your bets and we can serve both for a reduced fee. Please see our fees for more information.

If you would like assistance to ensure you serve the correct notice and are entitled to serve a notice please contact John Ward  at John.Ward@bttj.com or on 024 76 531532.

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You will almost always require a Court order to lawfully evict your tenant. There are various grounds on which a Court may order possession (non-mandatory), but fewer on which the Court must order it (mandatory).

Landlords usually wish to avoid bringing claims for possession on non-mandatory grounds. This is because, in such circumstances, the Court’s discretion is unfettered; it may, if it feels appropriate, make a suspended order under which the tenant may remain in the property.

If the Court makes an order on the basis of one of the mandatory grounds, the Court must make an immediate possession order, with the longest period of time for which the tenant is allowed to remain in the property being 6 weeks, and even then only on the basis of exceptional hardship (which does not include homelessness, which is an inevitable hardship of an eviction). Ordinarily, the tenant will be ordered to vacate the property within 14 days.

This article will focus on the two most common mandatory grounds on which claims are brought.

Unpaid Rent

Under Ground 8, Schedule 2 of the Housing Act 1988 (‘the Act’), the Court must order possession if;

‘…at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing-

(a) if rent is payable weekly or fortnightly, at least eight weeks rent is unpaid;

(b) if rent is payable monthly, at least two months rent is unpaid;

(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and

(d)if rent is payable yearly, at least three months’ rent is more than three months in arrears;

and for the purpose of this ground “rent” means rent lawfully due from the tenant.’

The thing to look out for when relying on this ground is that the arrears must be outstanding at the time notice under section 8 is served and at the time of the hearing. Therefore, if the tenant is always one month behind with their rent, even though there may be a short period of time in which two months are due in which the notice may be served, given their pattern of paying, the likelihood would be that, come the time of the hearing, the arrears may be less than two months’ worth. If that was the case, the claim for possession could not succeed.

Accordingly, ground 8 claims are most suitable where a tenant has a significant amount of arrears and no obvious means of making a large payment towards them in the near future.

If ground 8 is appropriate, the first thing to do is serve a notice under section 8 of ‘the Act’. Under section 8, the landlord must serve on the tenant a notice which specifies that they wish to claim possession of the property and rely on ground 8 to do so, and provide particulars of the claim (i.e. the amount of rent normally due and when, the amount outstanding etc.). The notice must also state that possession proceedings will not begin earlier than a date specified in the notice (which cannot be less than two weeks from the date of the service of the notice) and that those proceedings will not begin later than twelve months from the date of service of the notice.

The notice must exactly conform to the requirements of section 8. The Court is sometimes reluctant to make orders on mandatory grounds because it is compelled to make them regardless of the individual circumstances of a case; if there is an irregularity with a notice, it gives the Court a reason to refuse to make the order. We can assist with the drafting of a section 8 compliant notice.

If ground 8 is not appropriate, there is a further, catch all, mandatory option which can be utilised by landlords.

Notice to Quit

All landlords are, upon the expiry of a tenancy’s fixed term and upon the giving of notice, entitled to recover possession of their property. To ensure that there is no delay in commencing possession proceedings should the tenant fail to leave after the expiry of a notice period, landlords should ensure that the notice they give is compliant with section 21 of the Act.

Section 21 provides that a court shall make an order for possession of a dwelling-house if it is satisfied that the assured shorthold tenancy (the fixed term) has come to an end and the landlord has given to the tenant not less than two months’ notice in writing, stating that he requires possession of the dwelling-house. Such notice may be given before or on the day on which the tenancy comes to an end.

Accordingly, if a landlord rents a property for a fixed term of one year under a lease dated 01 March 2012, if they give the tenant notice on 01 February 2013, that notice must be for two months and, accordingly, the tenant must leave the property by 01 April 2013. Between 01 March 2013 and 01 April 2013, the tenant will occupy the property under what is known as a statutory periodic tenancy.

A statutory periodic tenancy is a tenancy which arises upon the expiry of a fixed term where no new term is agreed and the tenant continues to occupy the property. If rent was, as is usual, due monthly, a statutory periodic tenancy amounts to a rolling monthly tenancy. If, as opposed to the example above, a landlord wishes to give a tenant who is already occupying a premises under a statutory periodic tenancy notice, they still can, but slightly different rules apply.

The Court will make an order for possession only if notice has been given, in writing, that ‘after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section.’

This wording is difficult, and is best illustrated by example. A landlord lets a property to a tenant under a lease dated 06 March 2010. The fixed term is for one year and there is a monthly rent, due on 06^th of every month. The tenant remains in the property following 06 March 2011, when his fixed term came to an end. On 01 February 2013, the landlord decides he requires possession.

He must still give two months notice, but the date upon which the notice expires must be the last day of a period of the tenancy. The tenancy is monthly, running from the sixth to the sixth. The last day of a period of the tenancy would therefore be the fifth of a month. Two months from 01 February 2013 is 01 April 2013, but the notice must come to an end on the fifth of the month, and so the date specified in the notice must be 05 April 2013.

As with unpaid rent claims, the notice must exactly conform to the requirements of section 21, as an irregularity with a notice gives the Court a reason to refuse to make an order it would otherwise be compelled to make. This firm can assist with the drafting of a section 21 compliant notice.

Upon the expiry of the notice, it is open to the landlord to make a claim for possession. If there are any arrears, the landlord could seek an order that those be paid (the figure may be updated at the hearing if the arrears increase between the time the claim is issued and the time the matter is heard). If no claim for arrears is made, and only an order for possession is sought, the landlord may use the accelerated possession procedure.

Once an order is granted, which it should be provided the grounds are made it, it will usually provide the tenant a fixed period (normally 14 days) to leave. It is possible for a tenant who has had a possession order made against them to apply to the Court for more time; however, if the order has been made on mandatory grounds, the Court cannot delay the eviction for more than 6 weeks from the date on which the order was made.

As can be seen, landlords can take possession when they want or need to, but they must be careful about how they go about it. If the notice is in the proper form, served properly, followed by the appropriate proceedings, the Court will have no choice but to grant possession to the landlord.

The post Evicting a Tenant; A Guide for Landlords appeared first on Brindley Twist Tafft & James.

This new procedure, called the commercial rent arrears recovery (CRAR) procedure, only applies to rent arrears relating to commercial property, and is set out in the Tribunals, Courts and Enforcement Act 2007 and Taking Control of Goods Regulations 2013. This means that as of 6^th April 2014, the common law right of distress was abolished and replaced by the CRAR procedure.

The CRAR procedure is much stricter than the old common law right of distress, and there are criteria to be met before the procedure can be used.

Although the procedure applies to all tenancies of commercial premises, the tenancy must be in writing. Furthermore, the procedure cannot apply where part of the premises are used for residential purposes, unless the use of the premises for the same are in breach of the terms of the lease or any superior lease

CRAR can only apply to the main rent, and VAT and interest on the same. It does not apply to sums in respect of rates, outgoings, services, repair, maintenance, insurance etc, even if the lease expresses them as ‘rent’.

The Tenant must be in arrears of rent before notice of enforcement is given, and the amount of arrears must be certain, or capable of being calculated with certainty. The net figure of unpaid rent must equal or exceed a minimum amount. Currently the law states that the minimum amount of net unpaid rent must be equal to 7 days rent. The Tenant must be in arrears of this net unpaid rent when the control of goods is taken as well as before the notice of enforcement is given.

The CRAR procedure can only be exercised by an enforcement agent, who exercises the procedure on behalf of a Landlord. The Landlord must instruct the agent in writing, and the instruction must contain certain information.

There is a strict notice procedure to follow if the Landlord intends to follow the CRAR procedure, which must be adhered to before the Landlord gives instructions to the enforcement agent. This notice must be given at least 7 clear days before the CRAR procedure is exercised and the notice must contain specific information and be served in the correct manner.

There are also rules about which goods the CRAR procedure can be exercised against, including those goods which are exempt, and rules as to inventories and the valuation of the goods.

By using the CRAR procedure, the Landlord waives the right to forfeiture provisions contained in the lease, which needs to be given some careful thought.

This article is a summary and intended to be for information purposes only; it is not intended to be used as any form of advice. Please do not hesitate to contact our Commercial Property Team if you have any enquiries arising from the article, wish for us to draft a lease, or provide advice on your rights and obligations under an existing lease.

Nicola Godfrey-Dunne

Solicitor

Brindley Twist Tafft and James

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An Order for sale is a way to enforce a Charging Order. It is an order granting the chargeholder the right to take possession of the property and then to sell it in order to recover the monies secured by their charge. Order for sale proceedings are governed by Part 73.10 of the CPR.

2. Can an order for sale be obtained without first obtaining a charging order, to enforce an unsecured debt, for example?

If the creditor has no interest in the property, and is not a trustee of the property and then the court will not make an order for sale without a charging order being obtained first.

Therefore, if a creditor wishes for a property to be sold, it should first obtain judgment, followed by a charging order securing the debt.

3. Is the property being occupied by tenants a bar to obtaining the order for sale?

This is not a bar to obtaining the order for sale. However, pursuant to CPR 73.10, the Court has an unfettered discretion as to whether or not to make an order for sale; the Court will bear in mind the presence of tenants, or any other party, when exercising its discretion.

4. Can the Court make an order for sale over a property owned by the debtor jointly with a third party?

Yes. The preceding charging order will be made only over the share of the property that belongs to the judgment debtor. The fact that the property is jointly owned will not prevent the court from making an order for sale of the property. Again, the court must exercise its discretion; it will no doubt balance the impact on the creditor of being prevented from enforcing the charging order and the impact on the joint owner of being forced to sell their interest in the property.

Please note that the debt charged will only be recoverable from the share of the proceeds following sale that belong to the judgment debtor. If, for example, a property that is owned by two people equally is sold to enforce a charge of £30,000, and where the proceeds of sale, following the discharge of any charges with priority (most commonly a mortgage) are only £40,000, the creditor will only be able to recover £20,000, the share owned by the judgment debtor.

5. Are the costs of obtaining an order for sale fixed costs, like those of obtaining a charging order?

No. The costs should be assessed by the court at the end of the application. You should therefore prepare a schedule of costs for the application for the order for sale and file and serve this on the other parties in advance of the hearing; the costs will be payable out of the proceeds of the sale of the property.

6. What factors will the Court consider in deciding whether or not to make an order for sale?

The Court has an unfettered discretion, but the most relevant factors, apart from those considered above, are likely to be;

(i) Size of debt

(ii) Likelihood of the debt being satisfied by the proceeds of sale. A valuation of the property and redemption statements for an charges with priority will therefore necessary.

(iii) Whether the creditor is unlikely to be able to recover his debt using an alternative method.

7. How do I apply for an order for sale?

A judgment creditor can apply for an order for sale at any time. There are no limitation problems because enforcement of a charging order by seeking an order for sale is not an action on a judgment but a fresh step taken by the judgment creditor. Statute does however limit the arrears of interest that can be secured by a charging order to the last six years’ interest. That being said, interest will continue to accrue on the sum secured by the charge, until the principal debt is repaid.

An application for an order for sale requires proceedings under Part 8 of the CPR.. It should be made in the court that made the charging order unless the court lacks jurisdiction to make an order for sale. If the amount owed exceeds the County Court Limit, the application should be made in the High Court (the High Court can order the transfer of the proceedings to an appropriate county court).

A copy of the charging order must be filed at court with the claim form. The application must also be supported by written evidence (in the form of a witness statement or included in the claim form verified by a statement of truth and supporting documents).

Pursuant to CPR PD 73.4.3, the evidence must;

• (i) Identify the charging order and the property.
• (ii) State the amount in respect of which the charge was imposed and the amount due as at the date of issue of the claim.
• (iii) Verify the debtor’s title to the property charged, for example, by use of office copy entries of the land registry.
• (iv) State, so far as possible, the names and addresses of any other creditors who have a prior charge or other security over the property and the amount owed to each.
• (v) An estimate of the price which would be obtained on sale of the property, by way of a valuation.
• (vi) If a claim relates to land, give details of every person who to the best of the claimant’s knowledge is in possession of the property.
• (vii) If the claim relates to residential property, state whether:
• o a land charge of Class F, or
• o a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section,

has been registered and if so, state on whose behalf the land charge or notice has been registered and that the claimant will serve notice of the claim on that person.

There is a fee for issuing a CPR 8 claim; this will be higher if the claim needs to be issued in the High Court.

After the claim form and evidence is issued, the court may give directions, which may include fixing a date for the hearing of the application where the court will exercise its discretion whether or not to make an order sought.

The judgment creditor should send the claim form and other documents to the judgment debtor and any other interested party.

8. What happens to a charging order if the order for sale application fails?

Nothing. The charge remains and interest will continue to accrue. Depending upon the reason for the failure of the application, the costs of the application may be added to the charge, or be ordered to be paid by either party; they are in the discretion of the Court.

This Guide is for general information only and is not legal advice. Professional advice should be taken before taking action. No liability can be accepted for any action taken or not taken as a result of this information. Please see our Terms and Conditions

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Answer: The starting point is to check whether your tenancy was authorised by the Bank? I.e. did your Landlord obtain written authorisation from the Bank to let out the property or in the alternative does he or she have a buy to let mortgage which may imply that the tenancy was authorised.

If the tenancy was authorised then it is likely to be binding on the Bank. The Bank may still take possession of the property but they may have to do so subject to your occupation. The practical effect of this is that you would be allowed to remain living in the property subject to the terms of your tenancy agreement but you would see a change in the identity of the Landlord. It is possible for the tenancy to be brought to an end but in accordance with the terms of the tenancy agreement.

If the tenancy was not authorised then tenants have much fewer rights. The Landlord may be able to come to an acceptable arrangement with the Bank to avoid repossession however if this is not possible then it is likely that the Bank will take possession of the property.

Under the Mortgage Repossession (Protection of Tenants Act etc) 2010 (the “Act”) an unauthorised residential tenant is however entitled to request that possession be delayed for up to two months during which time they should try to find alternative accommodation.

The unauthorised tenant should approach the Bank’s legal representatives with a copy of their tenancy agreement and should request that the Bank provides them with an undertaking pursuant to the Act that they will not take possession of the property for a period of up to two months.

In the vast majority of cases the Bank will grant this undertaking because if it does not then the tenant may apply to the Court for an Order that possession is delayed for up to two months. The Court must consider the circumstances of the tenant and whether there is an outstanding breach by the tenant of a term in the unauthorised tenancy agreement. The Court is likely to make this Order provided that this relief has not been granted previously in the same proceedings.

The tenant may also have a claim against the Landlord for breach of the covenants in the tenancy agreement.

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