Troublesome Tenants: What can Landlords Do?
Sometimes even the most careful Landlord will encounter a “Problem Tenant”. If this happens, the Landlord needs to take prompt action. Leaving an issue unresolved will usually only make matters worse. For the purposes of this post, we are looking at a short-term letting of residential property on an Assured Shorthold Tenancy basis.
Common problems
Problems typically relate to:
• Money – such as late payment or non-payment of rent
• Treatment of the Property – for example, the Tenant is causing damage or neglect
• Behaviour towards other people – leading to complaints from housemates or neighbours.
Rent arrears
If the Tenant is late with rent payments, or is failing to pay rent altogether, the Landlord should issue a written reminder. If payment is still not forthcoming, the reminder can be followed up with a more strongly worded letter which raises the prospect of legal action being taken. See our Landlord Management Letters for a selection of templates.
Unacceptable behaviour
If the Tenant is behaving in a way that causes concern to the Landlord or to other people, this again needs to be documented. The Landlord should write to the Tenant describing the unacceptable behaviour and reminding the Tenant of the relevant terms of the Tenancy Agreement. A follow-up letter can then be sent if the offending behaviour does not stop. There are useful templates in our Landlord Management Letters.
Legal action
If the problem persists despite the Landlord raising the issue via a series of letters, the Landlord can consider taking legal action to evict the Tenant and obtain payment of any sums owing. The position is different according to whether the fixed term of the Tenancy is still running or has expired.
• During the fixed term – the Landlord would need to use the procedure in Section 8 of the Housing Act 1988. The Landlord must prove fault on the part of the Tenant, such as rent arrears or another breach of the Tenancy Agreement. Our Guidance on Section 8 and Section 21 Notices has more information.
• When the fixed term has expired – the Landlord can use the “No Fault” eviction procedure in Section 21 of the Housing Act. See our new Residential Possession Proceedings folder for detailed Guidance Notes and Template Forms.
The new Construction Design and Management Regulations 2015 (CDM) are expected to come into force from 6th April 2015. Previously, if you were a domestic client having building work done, this would have little impact on you, as you would probably expect the builder to take responsibility for health and safety on the project. Now, once the new legislation is in place, more clients are likely to fall under the banner of “non-domestic client” and subject to a raft of additional health and safety responsibilities.For example, if you are contemplating having a workshop or garden office built at the end of your garden, or perhaps you are a residential landlord refitting a rental property, then under this new legislation you will be a “non-domestic client” and subject to the increased health and safety duties that that entails.
As a rule – if you are getting a business income from the works, then you will be having the works done as part of a commercial enterprise and you will be deemed a non-domestic client.
CDM Regulations Explained: Why Are the Changes Being Made?
Statistically there are more injuries and fatalities on smaller, previously unregulated building projects than on larger ones. The HSE has decided to address this issue by requiring all projects to have someone overseeing health, safety and welfare, in both the pre-start and construction phases.
Accordingly, the aim of the CDM Regs. 2015 is to place increased responsibility on the three main parties in a building project – the client, the designer and the builder. The practical impact of these regulations is that non-domestic clients will now have even more legal duties in respect of health and safety on site and more clients will fall into the non-domestic category.
One of the new duties is that the non-domestic client will be required to make sure that health and safety has been factored into their project, and that sufficient funding has been allowed in the budget for such health and safety considerations – and there are many more.
For more information on the CDM Regs. 2015 please see the Simply-Docs information pages.
Are you aware that, following a Court ruling in December 2014, Residential Tenancy Deposits must be protected in an approved Tenancy Deposit Scheme even if they were received before the Tenancy Deposit legislation came into force in April 2007? Landlords will be unable to serve a valid Section 21 Notice to obtain possession of a property if the Deposit has not been protected.What do Landlords need to do with Deposits?
When a Landlord receives a Deposit from an Assured Shorthold Tenant, the Deposit must be protected in an approved Tenancy Deposit Scheme within 30 days. This protects Tenants by keeping Deposits safe and ensuring that Landlords act fairly when making deductions from the Deposit.
There are two types of Scheme: Custodial (where the money is held by the Scheme) and Insured (where the Landlord retains the deposit and pays an insurance premium to the Scheme).
What happens if a Landlord fails to protect a Deposit?
If a Landlord fails to protect a Deposit there are financial penalties and, perhaps more significantly, the Landlord will be unable to serve a valid Section 21 Notice to obtain possession of the property.
What does the new Case Law say?
Prior to the recent Court ruling in Charalambous v Ng it was understood that the requirement to protect Deposits applied to:
Deposits received since April 2007 and Deposits received before April 2007 which have been retained because, in or after April 2007, either a new tenancy was granted or the original tenancy became periodic.
In December 2014 the courts confirmed that there is a further situation in which Deposits must be protected: Deposits received before April 2007 in respect of a tenancy that became periodic before April 2007. In such a case, a Landlord is unable to serve a valid Section 21 notice if the Deposit has not been protected. (However, no financial penalty applies in this case.)
What should Landlords do?
Landlords affected by this Court ruling should either protect the Deposit before serving a Section 21 Notice or return the Deposit to the Tenant. To refresh your mind on the subject of Tenancy Deposit Protection, have a look at our Guidance on Tenancy Deposit Protection for Assured Shorthold Tenants and our Guidance on Section 8 and Section 21 Notices which reflect the new law.
