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Question Title: Resident Landlord
| Question: 71 |
| One of my client's is a resident landlord. His tenant has ceased to pay the rent and is now six weeks in arrears. I realise that the possession procedure will be different from that used for assured shorthold tenancies. How does my client obtain possession in this situation ?
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| Answer: |
| A tenancy where there is a resident landlord is expressly excluded from being and assured or assured shorthold tenancy by the Housing Act 1988 (Schedule 1(10)). A landlord is considered to be resident not only if he is living in the same property as his tenant but also, for the purposes of the Housing Act, if the landlord is living in the same building as his tenant unless the two properties are contained in a purpose built block of flats. This means that if a property has been divided into two or more self contained units or a granny annex has been added and the landlord lives in one of the units as his only or principal home he will be considered a resident landlord and precluded from setting up an assured or assured shorthold tenancy. If this situation occurs a standard assured shorthold tenancy agreement cannot be used. The agreement will be governed by a general contractual agreement between the parties involved. This normally provides the tenant with less security of tenure than that enjoyed by assured shorthold tenants. The Housing Act does not apply and there is therefore no requirement for the landlord to provide two months notice during the fixed term in order to terminate the agreement. The tenant has no security of tenure beyond the fixed term, they must simply leave on the agreed date. As the Housing Act does not apply, possession procedures, where the tenant does not leave or has breached his tenancy agreement, will not be the same. There is no ground 8 available (mandatory ground for possession where there are 8 weeks rent arrears) and no accelerated possession procedure where the tenants do not leave at the end of the agreed term. The Protection from Eviction Act 1977 does not apply to tenancies where there is a resident landlord. The definition of a resident landlord is the same as that contained in the Housing Act. This means that the landlord need only provide the tenant with reasonable notice (or the notice period agreed between the parties at the start of the tenancy) that he requires possession of the property. Where there are rent arrears, the landlord can rely on the forfeiture clause included as standard in most tenancy agreements. This forfeiture clause will normally allow the tenancy to be brought to an end if the tenant is in arrears of rent (usually 14 or 21 days). In order to operate this forfeiture clause the landlord will need to write to the tenant (a letter before action) stating that he requires possession of the property as the tenant is in breach of his tenancy agreement because of non payment of rent. The letter will need to provide the tenant with a reasonable amount of time to vacate or to pay the outstanding rent. What constitutes reasonable notice is not defined, but we would suggest 14 days as being reasonable. Because the tenant does not enjoy protection under the Protection from Eviction Act, he will have no power to prevent the landlord from peaceably evicting him once the notice period has expired and the rent arrears have not been paid. This could be by way of changing the locks whilst he is out or by placing the tenant's belongings from the property and leave them outside in an attempt to encourage the tenant to leave. The landlord must never threaten or use violence - this is an offence under the Criminal Law Act 1977. The safest way to obtain possession is always by obtaining a court order. If this option is taken, the standard possession procedure should be followed. Where there is no forfeiture clause, it will not be possible to end the agreement during the fixed term. The landlord will need to wait until the fixed term has expired before peaceably evicting the tenant or applying for a possession order through the courts. An action in the small claims court can be used to recover the rent arrears.
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References:
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Pages:
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Hyperlinks:
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Letting Update Journal |
Apr 2000 page 19 |
letting-update-journal.html
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Letting Handbook |
Chapter 6 |
letting-handbook-and-factsheets.html
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For more information, discuss on the Forum
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