Posts with tag: section 21 notice

Landlords Urged to Prepare for Revenge Eviction Claims

Published On: October 31, 2017 at 10:29 am

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Landlords are being urged to set up basic procedures to protect themselves against revenge eviction claims.

Danielle Hughes, a solicitor at Kirwans law firm, says that many landlords are leaving themselves wide open to revenge eviction claims and property disrepair, by failing to put clear processes in place to deal with tenant issues.

The introduction of laws against retaliatory evictions – in which landlords are accused of evicting a tenant solely because they have made a complaint about the condition of the property – were brought in as part of the Deregulation Act 2015. The laws currently only apply to Assured Shorthold Tenancies (ASTs) entered into since 1st October 2015, but will apply to all ASTs from 1st October 2018.

According to Hughes, landlords are now at an increased risk of seeing their claims for possession defeated in court, as tenants gain a greater understanding of the new retaliation eviction legal defence.

She explains: “Landlords may be shocked to discover that tenants could potentially successfully fight a claim for possession based on what has until recently been known as the non-fault eviction process.

“This defence can not only invalidate a Section 21 Housing Act notice and lead to the judge striking out a claim, but can also prevent a new Section 21 notice being served for six months.”

She continues: “There is a particularly strong chance of this happening in cases where landlords have failed to deal effectively with complaints and have had an improvement notice or an emergency remedial action notice served on them by the local authority.”

Hughes advises landlords to actively encourage tenants to report any problems with the property to them in writing at the earliest opportunity, to avoid the issue escalating to the point where the local authority becomes involved.

“The law sets out that landlords must provide an adequate response to complaints within 14 days of receipt,” she says. “The belt and braces approach is to inspect the property regularly and undertake any work required within a reasonable timeframe, depending on the works required.”

Hughes adds: “Most landlords pride themselves on being responsible, and are keen to be made aware of issues with a property so that they can both protect their asset and continue to provide safe and secure homes for their tenants.

“Keeping properties in good repair is not only preferential, it’s also essential to avoid other legal action being taken, such as housing disrepair claims, a hazard notice being served by the local council, and investigations into a breach of licence conditions, with the latter two carrying risk of criminal sanctions.”

There are cases in which landlords carrying out genuine evictions will be legally protected, including situations where the tenant has caused the disrepair, if the property is genuinely for sale on the open market (not to family, friends or business partners), and if, at the date of the Section 21 notice, the mortgage lender requires vacant possession to sell the property.

“However,” Hughes continues. “It goes without saying that the best approach is for landlords to be proactive in managing their property to ensure they’re not accused of a retaliation eviction in the first place.”

Hughes has her key tips for landlords to protect themselves against revenge eviction claims:

  1. Be aware of your repair obligations as set out in the AST and under Section 11 of the Landlord & Tenant Act 1985.
  2. Make open channels of written communication available so that tenants are able to report any problems.
  3. Implement a system whereby you respond to any written complaint within 14 days of receipt. If you will be away, then arrange for someone to monitor this for you. If a letting agent manages the property, ask them about their process for responding, to ensure they are doing so in a timely manner, as ultimately the landlord bears the overarching responsibility for repairs and responses.
  4. Put in place a schedule for any works to be completed within a reasonable timeframe, depending on the nature of the work needed.
  5. Keep records of your responses to the tenants in case the details are ever needed in court.
  6. Keep a log of any repair work you have undertaken.
  7. Retain any evidence you might have of occasions on which tenants have refused to allow access to the property for inspections or for repair work to be undertaken. This could prove vital.
  8. Most importantly, check whether there are any outstanding complaints with the property and address any such issues before service of notice under Section 21.

Confusion over Section 21 Notices Leaves Landlords at Unnecessary Risk, Warns Lawyer

Published On: June 27, 2017 at 9:25 am

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Confusion over new Section 21 notices is leaving landlords at unnecessary risk, with thousands of pounds being wasted on aborted possession claims and extensive delays in recovering property, warns a leading lawyer.

Danielle Hughes, of Kirwans law firm, says that the confusion has arisen as a result of legislation changes applying to residential Assured Shorthold Tenancies (ASTs) that began on, or have been renewed since, 1st October 2015.

Old Section 21 notices, which can still be used in relation to ASTs made up until 30th September 2015, require a minimum standard of proof from landlords that there is a written AST in place, the deposit has been protected and prescribed information relating to the deposit was served on tenants. Licences are also required for Houses in Multiple Occupation (HMOs) or in selective licensing areas.

Confusion over Section 21 Notices Leaves Landlords at Unnecessary Risk, Warns Lawyer

Confusion over Section 21 Notices Leaves Landlords at Unnecessary Risk, Warns Lawyer

The new Section 21 notices, however, which are currently intended for ASTs made from 1st October 2015 onwards and won’t apply to older ASTs until late 2018, impose several additional obligations on landlords, which must be complied with before the eviction notice can be served.

Now, Hughes has voiced her concerns that landlords and letting agents are serving new Section 21 notices on old ASTs, putting them at greater risk of having their case thrown out of court.

She says: “There are multiple reasons why it is beneficial to serve the old Section 21 forms on AST agreements made prior to October 1st 2015.

“Section 21 has, until recent years, been known as the non-fault notice, with the landlord required to provide only basic information for the older form to be valid, while tenants have limited grounds on which to dispute a possession claim.

“However, the new form sets out strict requirements with which the landlord must comply prior to serving the notice, including providing the tenant with an Energy Performance Certificate (EPC), a gas safety certificate, and the Government’s How to Rent: The Checklist for Renting in England booklet.”

In addition, Hughes notes that the new notice has a shorter validity period compared to the older forms, and can only be relied upon for a limited time after service. This means that the landlord either has to issue a possession claim within four months or serve a new notice.

“A failure to adhere to any of these requirements renders a notice invalid, which could see the case being struck out of court, a minimum 12-week delay to the landlord, loss of the court fee of £355, and a possible order to pay the tenant’s legal costs,” she explains.

The new notice also provides tenants with grounds for defending the claim on the basis that the eviction was retaliatory and came about only because they had raised concerns over repairs that needed undertaking at the property.

“If a tenant has reported a repair that needs undertaking to the local authority and an improvement notice has been served, the landlord may be prevented from recovering possession of the property using Section 21 for over six months under the new regulations,” Hughes says. “Service of the new notice where it is not needed, therefore, puts the landlord at unnecessary risk of this defence being successfully raised by the tenant in court.”

Hughes is now urging all landlords and agents to take advantage of this crossover period to use the old Section 21 notice where circumstances permit, before the regulations come into force across the board.

“I would urge landlords and agents to seek advice and to carefully consider how they approach Section 21 notices if their AST pre-dates October 2015,” she concludes.

NLA Criticises Councils Over Eviction Advice

Published On: February 1, 2016 at 3:56 pm

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NLA Criticises Councils Over Eviction Advice

NLA Criticises Councils Over Eviction Advice

The National Landlords Association (NLA) has spoken out against local councils for telling private tenants to ignore eviction notices from their landlords and instead await bailiffs before moving out.

The organisation reports that half (49%) of tenants who’ve been served a section 21 notice by their private landlord say they have been told to ignore the order by their local council or an advice service such as Shelter or the Citizens Advice Bureau.

The statistic highlights the scale of the issue, which has been exacerbated by the increasing use of private landlords by local authorities to relieve their housing responsibilities.

The NLA believes that the advice is increasingly being offered, as councils are refusing to accept tenants’ housing applications before an order for possession has been granted by a court, despite guidance from central Government, which confirms that all housing applications must be accepted from the time notice is served on a tenant.

The Chairman of the NLA, Carolyn Uphill, comments on the issue: “We’ve always known that tenants receive this kind of advice, and it’s a huge problem because it damages the confidence of landlords who work in the community to home those who aren’t able to access social housing.

“There is no justification for prolonging the stress and uncertainty brought by a possession case. Advice like this creates unnecessary strain on tenants, landlords and the courts service, which must first hear the case and order possession before councils are prepared to carry out their statutory duties.

“Nobody should ever be told to wait until the bailiffs turn up; it makes an already unpleasant situation much worse for everyone, and creates a vicious cycle of misery and spiralling costs for all involved.”1

1 https://www.landlordtoday.co.uk/breaking-news/2016/1/nla-speaks-out-about-councils-bailiffs-advice

New Advice on Serving Section 21 Notices

Published On: December 2, 2015 at 12:27 pm

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The Association of Residential Letting Agents (ARLA) has teamed up with Fixflo, a repairs software specialist, to create a series of timelines that help letting agents understand the changes to section 21 notices.

The new rules apply to every new tenancy in England that started on or after 1st October.

The timelines highlight the importance of providing an adequate response to each repair request from a tenant, if an agent or landlord wishes to be sure that a section 21 notice cannot be invalidated.

Managing Director of ARLA, David Cox, states: “It has become apparent through speaking to our members that the full scope of the changes has not been fully understood across the industry.

“Put simply, if you provide what the legislation considers to be an adequate response to every repair request, then any section 21 notice that you serve cannot be invalidated for being retaliatory.

“While each agency will need to make its own assessment of the legislation, as the law remains subject to interpretation by the courts, in the absence of further Government guidance, we consider that the Fixflo method for handling the need to provide an adequate response constitutes best practice for the lettings industry.”1

Legal lettings expert Tessa Shepperson adds: “I’m a trained lawyer who specialises in this area of law and it took me several hours to fully get to grips with these changes, which should, if properly drafted, have been readily understood by non-lawyers.

“While it’s still open for the courts to interpret the legislation as they see fit, providing an adequate response to every repair request and being able to evidence that response is the best way for anyone managing a property, whether landlord or agent, to protect their business.”1

Any cases under the new rules will not reach the courts until April 2016, due to timing restrictions.

Check back to Landlord News for the latest landlord law updates.

1 http://www.fixflo.com/blog/2015/12/Section-21-Changes-New-Guide-For-Letting-Agents

RLA Urges Housing Minister to Delay New Section 21 Rules

Published On: September 17, 2015 at 12:57 pm

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It is just two weeks until the new section 21 rules are due to be enforced, but the Residential Landlords Association (RLA) has urged the housing minister to delay implementation.

It has warned Brandon Lewis that there is a “major drafting error” in the new prescribed section 21 notice.

Lawyer Giles Peaker has also identified this “significant error” in his Nearly Legal blog.

Furthermore, he has criticised the “last minute approval of the regulations”, claiming that there is potential for “lots to go wrong”.

The new section 21 form is due to be legally binding from 1st October, part of the Deregulation Act.

RLA Urges Housing Minister to Delay New Section 21 Rules

RLA Urges Housing Minister to Delay New Section 21 Rules

However, the new form contradicts the Act.

The current draft of the form states that where a fixed-term tenancy ends and then turns into a rolling or periodic tenancy, the section 21 notice will only be valid for four months from the date that it is served to the tenant.

However, the Act says that the required period to regain possession of a property where a tenancy is rolling or periodic, should instead be four months from the date the section 21 notice expires.

Despite the RLA engaging with the Government throughout its plans, the final version of the standard form has not been shown to the body.

The RLA warns that the drafting exposes landlords to legal difficulties and is calling for the enforcement to be delayed, giving more time for them to correct the issues.

Policy Director at the RLA, David Smith, says: “The RLA continues to share the Government’s ambitions to ensure that all landlords understand and properly implement their legal responsibilities and obligations.

“In light of the major changes being introduced for the sector, it is vital that all documents published by the Government are clearly understood. This drafting error will serve only to dent the confidence of landlords in the legislation.

“Whilst ministers are understandably eager not to let these new measures drift, it would make more sense not to rush their implementation than face the potential legal difficulties that will now arise for landlords.”1

Peaker’s blog says that there are complications around the requirement for landlords or letting agents to give new tenants the Government guide, How to Rent.

If the booklet is not provided, then a section 21 notice cannot be served.

Additionally, Peaker says the obligation to provide Energy Performance Certificates (EPCs) and gas safety certificates before the tenant moves in, “will no doubt trip up quite a few landlords and agents”.

Read the blog here: http://nearlylegal.co.uk/2015/09/1-october-2015-section-21-day/

1 http://www.propertyindustryeye.com/more-chaos-as-housing-minster-told-to-delay-new-section-21-because-of-error/

Tips to legally evict your tenant

Published On: January 7, 2015 at 2:39 pm

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There are many reasons why a landlord or letting agent may want to evict a tenant from their property. In some cases, landlords will choose not to extend a lease or will be taking back the property for personal use.

Sometimes, landlords or letting agents are left with no choice but to take eviction procedures against their tenants. A tenant may have caused malicious damage or may have large rent arrears. Whatever the reason for an eviction, there are five key things to know about to ensure that the process is both legal and effective.

  • Serve notice of eviction

Section 21 of the Housing Act of 1988 states that tenants must be given at least two month’s notice before they can be legally evicted.

A section 21 notice must be provided in writing by the landlord and must give the date of the required repossession. This date should not be any earlier than the permitted two months grace period, nor should be earlier than the original tenancy agreement.

If the rental term has already expired, the date specified on the letter should be the final day of the agreement.

  • Possession Order

If a tenant refuses to vacate the property after being served with a Section 21  notice, the landlord must go to their local court and appeal for a possession order. It must be noted that the court cannot grant a possession order in the first 6 months of a tenancy.

When seeking a possession order for a shorthold tenancy, the landlord must ensure that all of the necessary legal procedures (issuing a Section 21) have been followed. In addition, if there are serious rent arrears (8 weeks plus) at the time of a possession order request, landlords can issue a Section 8 notice to regain their property.

Tips to legally evict your tenant

Tips to legally evict your tenant

  • Accelerated possession procedure

Landlords wishing to gain quicker possession can follow an accelerated possession procedure. This procedure does not require a court hearing, but will require a fee before any action can potentially commence.

For accelerated possession, a landlord will need to find the County Court for the area where the property is situated, then fill in a Form N5B claim for possession. These are obtainable from HM Court services. The court will then post the papers to the tenant.

If successful, the landlord will be granted an order for possession and the tenant will be made to pay any court fees. The whole process normally takes between 6-10 weeks.

  • Professional notice service

In some instances, a tenant will either not be inside the property or will not answer the door to be served notice. In this instance, the landlord should ask for a witness and post the letter through the letterbox. The notice is then deemed to have been served on the following day.

On occasion, it will be inconvenient for a landlord to visit their property to give notice, as they may be worried about a confrontation with the tenant. In this instance, a professional process server should be used. Fees for this service are small and the landlord will be provided with a certificate that can be used in court.

  • Read the renting guide

The Department for Communities and Local Government has provided a How To Rent Guide, which all landlords are advised to read.