There are a number of ways in which a lease can be determined (terminated). The first thing that must be done is to determine whether there is a just cause to evict a tenant. Eviction of a residential tenant is something which should be done as a last resort, and there must be a legitimate reason for doing so. Things such as a personality conflict or a mere dislike for the tenant will not be satisfactory. The most common grounds on which a landlord will attempt to evict tenants are: the non-payment of rent, severe damage to the property, a violation of the terms of the lease, or that the tenant is engaging in illegal activities on the premises. A strict procedure must be adhered to if a landlord wants tenants to vacate the property, if they are not followed the landlord may be guilty of harassing or illegally evicting the tenants.
There are two types of assured shorthold tenancies: the ‘periodic’ tenancy which run week-by-week or month-by-month with no fixed end date, or fixed-term tenancies which are set to run for a set amount of time.
In regard to either assured shorthold tenancies, a landlord can serve a Section 21 or a Section 8 notice or both. A section 8 notice should be served if the tenant has broken the terms of the tenancy. A section 21 notice of seeking possession can be used after a fixed term tenancy comes to and end, if there is a written contract; or during the tenancy with no fixed end date during a ‘periodic’ tenancy. There are strict rules as to when a landlord cannot use a Section 21 notice in England and Wales. In England, a landlord cannot use a Section 21 notice if any one of the following apply:
- it’s less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this
- the property is categorised as a house in multiple occupation (HMO) and does not have an HMO licence from the council
- the tenancy started after April 2007 and you have not put the tenants’ deposit in a deposit protection scheme
- the tenancy started after October 2015 and you have not used form 6a or a letter with all the same information on it
- the council has served an improvement notice on the property in the last 6 months
- the council has served a notice in the last 6 months that says it will do emergency works on the property
- you have not repaid any unlawful fees or deposits that you charged the tenant – read the guidance for landlords on the Tenant Fees Act 2019
- You also cannot use a Section 21 notice if you have not given the tenants copies of:
- the property’s Energy Performance Certificate
- the government’s ‘How to rent’ guide
- a current gas safety certificate for the property, if gas is installed
- You must have given your tenants the gas safety certificate and the ‘How to rent’ guide before they moved in.
- You must have given your tenants a copy of the property’s Energy Performance Certificate before they rented the property.
In Wales a landlord cannot use a Section 21 notice if any of the following apply:
- it’s less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this
- the property is categorised as a house in multiple occupation (HMO) and does not have an HMO licence from the council
- the tenancy started after April 2007 and you have not put the tenants’ deposit in a deposit protection scheme
- the tenancy started after November 2016 and you do not have a landlord licence.
In England a landlord must use the ‘6a Tenancy form: Notice seeking possession of a property let on an assured shorthold tenancy’; in Wales a landlord must explain in writing that you are serving an eviction notice under Section 21 of the Housing Act 1998.
A Section 21 notice to the tenants at least 2 months to leave the property, and in England this may be longer if there is a contractual periodic tenancy. The amount of notice must be the same as the rental period, if this is longer than 2 months. For example, if a tenant pays rent every 3 months then the tenant must give 3 months’ notice. In Wales, if it’s a periodic tenancy the landlord must let the tenants stay for any additional time covered by their final rent payment.
To serve a Section 8 notice the landlord must fill in a ‘Notice Seeking Possession of a property let on an assured tenancy or an assured agricultural occupancy’. On this notice the landlord will specify the terms of the tenancy the tenants have broken. If the tenants do not leave by a specified date then a landlord may apply to the court for a possession order: apply to the court for a standard possession order (N5 form) if the tenants do not leave by the date specified on the notice and they owe the landlord the rent. The landlord can apply for an accelerated possession order (N119 form) if the landlord is not claiming any unpaid rent If have given the tenants notice before 26 March 2020, the notice period must have been between 2 weeks’ and 2 months’, depending on which terms were broken. If you gave your tenant notice on or after the 26 March 2020, the notice period must be at least 3 months. This is because of coronavirus. After the expiry period if your tenant has still refused to leave you may also apply for a warrant for possession which means that bailiffs can remove the tenant from your property.
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