|
|
Question Title: Forfeiture Clause
| Question: 324 |
| My solicitor has advised me that it is only possible to seek possession relying on ground 8 of sch. 2 of the 1988 Act during the fixed term of an AST if a provision is included in the tenancy agreement stating that possession may be sought using this ground. Is this true ?
|
| Answer: |
| If you wish to rely on any of grounds 1-17 (Schedule 2, Housing Act 1988) to terminate the tenancy, it is a requirement that the tenancy agreement contains a forfeiture clause if the landlord wishes to retain the right to terminate the tenancy (Housing Act 1988, section 7(6)(b) ). Indeed, in the case of a fixed term tenancy where there is a forfeiture clause, a court can only make an order for possession on grounds 2 and 8 of the mandatory grounds or 10 - 15 and 17 of the discretionary grounds. The statement in your question is, therefore, not exactly true. The requirement under the Act merely requires that a forfeiture clause is present (i.e. one which normally allows the tenancy to be brought to an end if any of the obligations in the tenancy agreement have not been complied with), and not that any specific reference is made to that particular ground as defined in Sched. 2. It is possible that your advisor is confusing this requirement with the prior notice grounds (grounds 1 to 5) which do require that the tenant has been given prior notice that possession may be sought under these grounds before they may be used. There are two final points to add on this issue. Firstly, grounds 1 to 4 are nowadays rarely either used or invoked in possession proceedings for assured shorthold tenancies (although many building societies needlessly continue to insist that they are included in the tenancy agreement). These grounds are more useful in the case of an assured tenancy where the landlord has no certain right to possession at the end of the fixed term. Secondly, you will find that any residential tenancy agreement from a reputable source will contain a forfeiture clause as standard.
|
|
References:
|
Pages:
|
Hyperlinks:
|
|
Letting Update Journal |
Jan 1998 page 25 |
letting-update-journal.html
|
|
Letting Handbook |
Chapter 12 |
letting-handbook-and-factsheets.html
|
For more information, discuss on the Forum
|
|
