Landlords Rights to Entry
As part of a landlord duties in managing a house the landlord should make every effort to establish a good working relationship with the tenant. This is particularly important when dealing with access to the property or when undertaking repairs. Part of ensuring a good relationship will be good communication with the tenant and ensuring that their expectations are both reasonable and accurate about the level of service that will be delivered.
It is important to note that, unless the tenant agrees otherwise, a landlord must give adequate, at least 24 hours’, written notice of any visit and its purpose.
- Visits must not be intrusive. If they were, this could constitute harassment
- These conditions apply only to areas where the tenant or tenants (in the case of a joint tenancy) have exclusive possession
Landlords may gain entry to communal areas that remain under their control at all reasonable hours but we would advise giving tenants reasonable notice of this and the reasons why, for instance testing of the fire alarm systems on a regular basis.
Tenants do have a right to quiet enjoyment of their accommodation. Even if the landlord gives proper notice of a visit, the tenant may still legally refuse access. If a tenant refuses access the landlord should try and find out why before resorting to legal action, for instance the timing of the appointment and making suitable re-arrangements. Only if the tenant will not make alternative arrangements or where the tenant persistently causes delays and in so doing compromises the landlord’s ability to fulfil their legal obligations should the landlord consider legal action using prescribed legal process or seeking a court order to secure access.
There are times when the property may have to be entered as a matter of urgency. Statutory bodies are able to do this in appropriate circumstances:
- gas: contact the National Grid emergency number 0800 111 999
- water: sewer and/or flooding: contact the utility company responsible for water in the area if closing the stopcock is ineffective and the Local Authority Environmental health Department who will be able to offer advice and assistance on individual circumstances
- suspicious circumstances relating to criminal activity: liaise with the police
If you are experiencing difficulties in gaining entry to the accommodation for routine, maintenance or emergency purposes the we would advise seeking legal advice and/or contacting the local authority Environmental Health Department to discuss options available to you. Landlords who enter without the consent of the tenant or against their wishes must be able to demonstrate, if challenged, that it was reasonable to enter under the circumstances.
Nuisance and Antisocial Behaviour
Anti-social behaviour (ASB) is any behaviour which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household. Examples include, but are not limited to, noise, violence, abuse, threats and use of the property for illegal drugs. Adequate checks prior to letting should minimise the risk of letting to someone who is likely to behave anti-socially and the tenancy agreement should include appropriate clauses about anti-social behaviour. It is common for the local authority to include a licence condition for premises which require a licence under the Housing Act 2004, stating that landlords must take reasonable action to prevent and, where necessary, to remedy anti-social behaviour.
In cases where anti-social behaviour is suspected by the landlord the police or the local authority anti-social behaviour teams maybe contacted by the landlord or vice versa if there is a problem in one of their properties. It is important to try to work with them to resolve the situation.
A range of measures can be used including mediation, Closure Orders, Anti-social Behaviour Orders (ASBOs) and/or eviction, depending on the circumstances and seriousness of the situation.
In cases of noise from the property contact the Environmental Health Department as they may be able to take enforcement action against the perpetrator including prosecution and seizing equipment and see the Antisocial Behaviour and Neighbourhood Problems page for further information.
Ending a Tenancy
The ending of a residential tenancy can be very complex and it is advisable to seek legal advice from the outset of any problems that arise. Bringing a tenancy to an end usually takes two common forms, either through bringing a tenancy to a contractual end or as a result of due legal process being taken to evict a tenant. Full legal advice is beyond the scope of this article and merely provides a summary of the main points for consideration. The majority of private sector tenancies relate to assured and assured short hold tenancies (AST) regulated by The Housing Act 1988. For Housing Act 1988 tenancies, i.e. most tenancies in the private rented sector there are different methods of bringing possession proceedings depending on whether the contract is an assured or an assured short hold tenancy.
What if the tenant and landlord want the tenancy to continue?
A periodic tenancy will continue until either the landlord or the tenant brings it to an end – usually by serving notice to quit.
A fixed-term assured tenancy (i.e. non-short hold) will continue after its expiry date, and the landlord can only bring it to an end on certain grounds. Most tenancies in the private rented sector start life as fixed-term assured short hold tenancies. When the fixed term of an assured short hold tenancy ends the landlord has the following options if they want the tenancy to continue:
- to agree a replacement fixed-term short hold tenancy with the tenant
- to agree to a replacement assured short hold tenancy on a periodic basis called a contractual periodic tenancy or
- to do nothing and allow the assured short hold tenancy to run on with the same terms, under a statutory periodic tenancy
What Landlords can do if they want a Tenant to leave?
A tenancy of someone’s home, starting on or after 28 February 1997, will in most cases be an assured short hold tenancy (AST). The procedures for ending a tenancy are different, depending on the type of tenancy so seek advice early if you have any doubts as to the type of tenancy. In most cases, the procedure will involve serving adequate and legal notice to quit on the tenant;
- The tenancy agreement may specify the method and manner by which notices may be served. Any specified method in the agreement should be followed as the landlord’s claim for possession could be struck out by the court if it is not
- Service should ideally be by hand, with a witness and be backed up by an alternative method, for instance by post, with either a certificate of posting or recorded delivery. At the time of making the application to court a landlord will be required to supply the court with evidence about the service of the notice
- If the notice is in the wrong form, or incorrectly served, it could mean that the landlord will lose the case. For inexperienced landlords we would recommend legal advice on the service of a notice to quit to ensure the correct procedures are followed and you don’t leave yourself open to legal challenge
At the end of a fixed-term AST, if the landlord does nothing and the tenant stays on in the property, the tenancy will automatically run on from one rent period to the next on the same terms as the preceding fixed-term assured short hold tenancy. This is called a statutory periodic tenancy. The tenancy will continue to run on this basis until a new fixed-term or periodic tenancy is agreed or the tenant leaves or the court awards the landlord possession. If the landlord does not want the tenancy to continue as a statutory periodic tenancy the landlord will need to serve a section 21 notice to bring the tenancy to an end. The notice is known as a section 21 notice, as the landlord’s right to recover possession and the notice procedure is set out in section 21 of the Housing Act 1988. The notice must be served on the tenant at least two months before the landlord wants the tenancy to end.
Notices to end an AST, if served during the fixed term, do not need to be on a prescribed form and may be issued by letter providing that they comply with the following rules;
- the duration of the notice must be at least two months and
- the notice must not expire earlier than the fixed term of the agreement (it may expire on any given date after the end of the term)
The court cannot grant an order for possession during the first six months of the tenancy using the section 21 procedure. The requirements for a court order for possession under section 21 are:
- that the tenancy is an assured short hold tenancy
- that any fixed term of the tenancy has expired
- that a notice properly drafted in accordance with the provisions of section 21 has been served on the tenant and has expired
- that any deposit paid was duly protected under the appropriate regulations for tenancies created on or after 6 April 2007
- that any licence required under the Housing Act 2004 (for example a mandatory House of Multiple Occupation licence) has been applied for
In the majority of cases to end a Periodic Tenancy notices must be given in writing and must:
- state that possession is required under section 21 of the Housing Act 1988
- have a notice period of at least two months and
- expire on the last day of a period of the tenancy (For example, if the rent period is from the eleventh of the month to the tenth of the next month, the end of tenancy date in the notice must be the tenth of the month.)
To end a Fixed-term Tenancy before it is due to expire?
There will be cases when a landlord has agreed a fixed term, e.g. student lettings, but needs to end the tenancy early due to for instance a change in the landlord’s circumstances, or because things are not working out with the tenant.
If a landlord wishes to obtain possession of the property during the fixed term of an assured or assured short hold tenancy, they can only seek possession:
- if one of the grounds for possession in Schedule 2 of the Housing Act 1988 (as amended) applies and
- if the tenancy agreement has a clause in it providing for this (this is sometimes known as a re-entry or forfeiture clause, even though forfeiture cannot be used for assured/assured short hold tenancies) or
- by activating a properly drafted break clause and then using the section 21 procedure (assured short hold tenancies only)
For break clauses, to be valid they must be available for use by both the landlord and the tenant, not just the landlord alone.
Although a landlord can re-take possession if it is obvious that the tenant has abandoned the property, in most cases the landlord will need to obtain an order from the court. Evicting a tenant without a court order is a criminal offence (with very few exceptions).
The grounds for possession are divided into mandatory grounds (Grounds 1-8 upon which the court must order possession if the landlord proves the allegation) and discretionary grounds (Grounds 9-17 upon which the court may order possession if the allegations are proved and if the court considers it reasonable to make the order). The grounds must be specified in the notice, which must be a section 8 notice. The notice is in a prescribed form. Section 8 of the Housing Act 1988 also specifies what minimum notice period must be given – and this depends on the ground(s) being used.
A landlord will have to consider what it is that they wish to achieve by commencing legal proceedings to end the tenancy. They will have to take into account the time, effort and cost involved and also if they have used all other methods of resolving a problem.
It is imperative that you seek legal advice both to draft and end tenancy agreements to ensure that contractual arrangements are properly drafted from the beginning. This is so you can correctly apply the grounds detailed in The Housing Act 1988 Schedule 2 correctly should you be required to do so, this is because some grounds will require inclusion in the original tenancy start-up to be used correctly.