Landlord’s Nightmare/Tenant's Dream
In the 1960s, 70s, even 80s, tenants had started to acquire a considerable degree of security of tenure. The situation was such that prospective landlords would not let their (empty) premises for fear that they would never regain possession of them. The Government of the day introduced the Housing Act 1985 which made provision for shorthold tenancies which meant that, upon the landlords giving the required notice, they could recover possession. The 1988 Housing Act consolidated this and such tenancies became Assured Shorthold Tenancies (ASTs). Accordingly, the position has been much safer for landlords since then but is still not without its difficulties.
What to watch for are:-
- The AST must be for a fixed period of not less than 6 months and not more than 3 years.
- Very importantly, any deposit paid by the tenant must be paid by the landlord into a deposit protection scheme, or the appropriate deposit insurance taken out. If this is not done, the landlord can be punished by being ordered to pay not just the return of the deposit but three times the value of the deposit.
- Even the deposit situation is not without its difficulties, as Landlords must give tenants the Prescribed Information; and if the deposit has not been paid into a deposit protection scheme,or the appropriate deposit insurance taken out, and if the Prescribed Information has not been handed to the tenants any notice seeking possession will not be valid.
- With ASTs, landlords can recover possession of their premises, so long as they have given the appropriate notice, but even this is beset with difficulties namely:-
- the Notice must be in a prescribed form and not just any wording will do.
- the Notice must be for a minimum of two months (one month in the case of the tenant) and if given in the middle of a fixed term tenancy, cannot expire before the end of the fixed term tenancy. Accordingly, landlords should be wary about granting tenancies for too long a period.
- Even the giving of the Notice can have its pitfalls:-
- The tenancy must end on the last day of a period of the tenancy and not earlier than two months after the date the Notice was given.
- Even in giving the two month Notice, care must be taken to allow at least two days for the Notice to reach the tenant. Accordingly, to allow for a two month notice to expire on, e.g. 6 January 2015, the Notice should not be posted later than 4 November.
The problem with getting any of these requirements wrong is that a court will throw out a claim for possession, leaving landlords having to serve a fresh two month Notice, effectively having to start all over again and losing valuable time.
Note the two month Notice should not be confused with notices that can be given to recalcitrant tenants who do not pay their rent or do not abide by their covenants when a different form of notice and procedure should be used.
To guard against falling unwittingly into some of these traps, it is always advisable to obtain specialist advice. AMD are pleased to advise in these situations and contact can be made with Chris Brown at our office at 2 Station Road, Shirehampton, Bristol BS11 9TT (telephone 0117 9235562) or John Todd at our office at 100 Henleaze Road, Bristol BS9 4JZ (telephone 0117 9621205).