Managing a tenancy, tenancy deposits & eviction

Understanding your rights and responsibility under a tenancy will assist landlords and tenants in helping to make sure lettings run smoothly and that both parties have a clear understanding of their relationship. Deposits in the private rented sector now need to held centrally in a government operated scheme. Eviction can be a complex area of the law and the requirements to be able to use eviction notices has changed.

Information for tenants

 

I have paid a deposit to my landlord but I am not sure whether it has been protected or not, what can I do?

You can check whether your deposit has been protected in one of the approved schemes by clicking on the following links and submitting the relevant information:


Your landlord only needs to protect your deposit if you have an assured shorthold tenancy (AST)   

What can I do if my deposit has not been properly protected?

If you have an assured shorthold tenancy, you can claim up to three times the amount of the deposit that you paid to your landlord if it has not been protected within 30 days of you paying the deposit and they haven’t provided you with the prescribed information. It is worth noting that you have six years to make a claim so it is probably better to wait until your tenancy is over and you have moved to another property before pursuing a claim. Please visit this Shelter webpage for details of how to start a compensation claim. It is possible to do this on your own or with the involvement of a solicitor.

What should my landlord do at the start of my tenancy?

By law, your landlord must provide you with the following before granting you a tenancy:

  • The property’s Energy Performance Certificate
  • A current gas safety certificate for the property
  • The government’s ‘How to rent’ guide

If they have not done, so you should ask for them. Ultimately, it can be much more difficult for a landlord to evict you if these documents have not been provided. Although not a legal requirement (unless you live an area covered by selective licensing or you specifically request one) we strongly recommend that the relationship between you and your landlord is defined in a tenancy agreement. This makes clear who is responsible for what, how long the agreement is for and how much you are paying for the property. It protects both the landlord and tenant. You will need a tenancy agreement if you need to claim for Universal Credit or Housing Benefit.

Disputes about rent are not uncommon so its important you are clear about when rent is due and how you will receive acknowledgement of rent being received by your landlord. You will have to be given a rent book if you are paying your rent on a weekly basis. Electronic payments are very useful as they provide a record of when a payment is made.

I am an assured short hold tenant. Under what circumstances can a landlord evict me?

You cannot be evicted during the protected period of your tenancy unless you have broken the terms of the tenancy (for example by being involved in anti social behaviour or not paying rent). Outside of the protected period (this is sometimes called a "periodic tenancy") or at the end of the protected period the landlord can serve a section 21 notice. You needn't have done anything wrong for your landlord to serve this type of notice as the landlord has the right to obtain possession of the property. The Housing Options and Homeless team at St Leger Homes can advise you further should you receive an eviction notice.

If you do not leave your property within the time provided on an eviction notice, your landlord can apply to Court for a possession order. The judge will consider if the landlord has complied with certain conditions relating to the tenancy including whether they have given you the prescribed information (see above), whether they have charged any illegal fees & whether your deposit has been protected. Shelter have provided in depth guidance about eviction proceedings here. Ultimately you can only be forcibly evicted from a property by a bailiff acting under a warrant granted by the Court. However we strongly recommend you start evaluating your housing options upon receiving an eviction notice. A landlord can use a section 21 notice in response to you complaining about repairs unless the Housing Enforcement team have served certain legal notices with regard to disrepair. For this reason, it's important to try to attempt to discuss your repairs with your landlord before complaining to us. There is more information concerning how to do this on our repairs page.

If your landlord is taking steps to evict you from your home, there’s a new service that might be useful in reaching an agreement to resolve the matter. Where appropriate, the Court should offer you and your landlord the opportunity to use a new mediation service at the case review stage. Further information can be found on the Housing Possession Mediation Service webpage

I've fallen into rent arrears. What should I do?

You should act as quickly as possible if you have fallen behind with your rent. The longer you leave it, the worse the problem is likely to get. Be clear about whether you are solely liable for the payment or whether it is a joint responsibility with someone else who lives in the property. If you have a tenancy agreement, this should define who is responsible for payment and how much. If you took over someone else's tenancy (sometimes called "assignment" or "succession") be clear on the date when you became liable. You will not be responsible for rent arrears that occurred before assignment.

You should check that what the landlord is claiming in rent arrears tallies with the payments you think you have made. Use your rent book (mandatory for weekly rent payments), payment receipts and bank statements to check. Ask your landlord for a statement detailing the total amount and how the amount has built up over time. If your rent is paid by the Council, please contact us. Once you have established the amount owed, you should discuss the matter with your landlord. It's always worthwhile to be honest and explain the problems you had leading up to the debt. Discuss what you could reasonably afford to pay off and don't be pressured into an agreement which is not sustainable for you. Ideally any repayment plan should be signed by you and your landlord. Stepchange are a charity who can offer advice concerning rent arrears and debt management. Please click here for further details concerning stepchange

 Information for landlords

Why should I take a deposit?

A deposit from your tenant is a safeguard for you that ensures that you have some recourse of action if any damage is caused to any part of your property or the inventory within your house. You can withhold payment of the deposit for any disputes upon conclusion of the tenancy. From 1st June 2019 the maximum amount that you can take for a deposit is the equivalent of 5 weeks’ rent for new and renewed tenancies (or 6 weeks if the annual rent is £50,000 or more).

Do I have to protect a deposit?

You must ensure that the deposit is protected in one of the following schemes as this is a legal requirement on all assured shorthold tenancies made after 6 April 2012:

Deposit Protection Scheme
Tenancy Deposit Scheme
My Deposits

You must provide written confirmation within 30 days to your tenant that you have protected their deposit with details of the scheme.

What happens if I do not protect my tenants deposit in one of the certified schemes?

Your tenant can make a compensation claim of up to three times the amount back off you if you have not protected the deposit in one of these schemes and provided them with confirmation of this within 30 days of you taking the deposit. Your tenant has six years to make this claim. If you have not protected your tenants deposit this also prevents you from taking eviction action under Section 21 of the Housing Act 1988. 

I’m thinking of renting out my house what steps should I take?

You must by law provide the following information to your tenants:

The property’s Energy Performance Certificate
A current gas safety certificate for the property
The government’s ‘How to rent’ guide
An electrical safety certificate

Failure to provide this information precludes you from taking eviction action under Section 21 of the Housing Act 1988 (see eviction tabs below). Houses in multiple occupation are likely to need licensing and selective licensing is in operation in certain parts of the Borough. Please see our landlord licensing pages for further info.

We strongly recommend using a tenancy agreement to define the terms under which the property is being let. If you're confident you can use your own agreement or you can seek out legal advice. Click here for  a model tenancy agreement from the government. You would be advised to provide an inventory of the premises with a description of the items within the property, their condition where relevant and their replacement value. It is advisable for you and your tenant to agree and both sign copies of this inventory and provide a copy to your tenant and keep a copy for yourself. A video recording of the condition of the property shortly before it is let could also prove to be very useful. It goes without saying that the property should be safe and in a good state of repair when you commence the tenancy and you will need to monitor this periodically through inspections. Please visit our repairs page, standards page and fire safety page for further information.

I am thinking of using a letting agent. What should I do? Do the Council offer a service?

St Leger Homes, manage council property in Doncaster and also have a property management team dealing with private sector lettings.

Think first about what level of management you require - someone just to find tenants? Or someone to fully manage every aspect of your property. The extent of service will be reflected in fees which are generally between 10-15% of the rental value. It is now a legal requirement that letting agents are registered with Property Ombudsman Service or Property Redress Scheme. 

Reputation is crucial, so we recommend speaking to other landlords concerning who they'd recommend as an agent

Information on the possession action process for landlords (Including the New Housing Possession Mediation Service)

It's always a good idea to try to resolve things informally, however this may not always provide a resolution. The information below is a basic overview of the options available. 

Possession action during Covid-19 and the new mediation service

Between March 26th 2020 and 20th September 2020, all possession hearings were suspended. Courts re-opened on September 21st 2020 & Courts will prioritise possession cases with serious ASB and long standing rent arrears . Eviction notices have also been amended and will now provide 6 months notice to tenants except where there is serious ASB, domestic violence, rent arrears amounting to more than 6 months' rent & cases where a false statement has been made (this will apply until at least March 2021). Strict new Civil Procedure Rules will need to be followed by landlords seeking possession with the following key changes in place:

  • Landlords will need to confirm their intention to carry on with a possession case by completing a re-activation notice and sending it to both the Court and the tenant(s), if the notice was served prior to August 3rd 2020. Account will need to be made of any changes to the tenant's circumstances as a result of the COVID-19 pandemic (particularly in relation to increased vulnerability or changes to social security status) . This will apply to existing and new claims as well as accelerated possession claims. Changes will be in force until March 2021.
  • Re-activation notices are not required where you already have a possession order. Landlords in this situation can move to executing the warrant by using a bailiff service. 
  • Courts will have greater flexibility in setting the hearing date which was previously set at the same time as a claim form being issued. They will now be able to set the date following the production of the claim form. There will no longer be a requirement for the Court to set a date within 8 weeks of the claim form being issued. 
  • Evidence of rent arrears will now be needed in advance of the hearing. Tenants can request the Courts extend the possession date if they have suffered extreme hardship as a result of the pandemic; you will be alerted to this in the tenant's defence statement.
  • High court bailiffs will need to provide notice to the tenant of the eviction date in the same way that county court bailiffs issue notice. The notice shall include details of how the tenant can apply to suspend the eviction and where to go for help.
  • The Government is strongly advising landlords not to pursue eviction in non-priority cases. It considers priority cases to be those involving anti-social behaviour, extreme rent arrears, domestic abuse, cases involving squatters, fraud or unlawful subletting.
  • Landlords are being actively encouraged to pursue mediation where possible to avoid eviction proceedings. If possession proceedings are commenced, at the case review stage, if both parties agree, the case will also be referred for mediation. The government is funding the Housing Possession Mediation Service (HPMS) which will be free to use for landlords and tenants. Where you and your tenant reach an agreement, the case will not proceed to a substantive hearing. This pilot will be available for at least 6 months from February 2021.

How do I decide whether to use Section 8 or Section 21?

If the tenancy is coming to an end you must give a notice period of at least 2 months that you want to end the tenancy by serving a Section 21 notice on your tenant(s), commonly known as a not at fault notice. Once a tenancy has become periodic, you can use the no fault section 21 process at any point. If your tenant has broken the terms of the tenancy agreement then you may serve a Section 8 Notice. The Housing Act 1988 provides specific grounds on when Section 8 can be used. More details on both types of eviction and the process can be found on the government's possession pages

What is a Section 21 Notice?

It is a notice that informs your tenant that you would like to take repossession of the property i.e. you want to evict them either because the agreed tenancy agreement is coming to an end; or where there is no fixed end date, known as a periodic tenancy and you wish to regain possession; or you may wish to simply regain possession of the property for some other reason. Click here for the standard government eviction notice (form 6A)

Under what circumstances is Section 21 not available?

You will not be able to use Section 21 if any of the following apply: 

  • If you have not protected the tenants deposit in a deposit protection scheme (Only if the tenancy started after April 2007).
  • If we have served either an improvement notice or an emergency works on the property within the last 6 months.
  • If you haven’t paid back any unlawful fees or deposits that you have charged the tenant. Please see our fees page for further info.
  • If you have not already given the tenant a copy of the property’s Energy Performance Certificate, gas safety certificate (where required) or “How to rent” guide
  • If you have not used form 6a (government eviction notice) or a letter with all the same information on it and the tenancy started after October 2015
  • If you are operating a property subject to HMO or selective licensing but have failed to obtain a licence.
  • If you have not provided an energy performance certificate (EPC) or landlord's gas safety certificate.
  • When it is less than 4 months since the tenancy started or the fixed term has not ended unless you have included a clause in the contract that allows you to do this.

What is a Section 8 Notice & how long do I need to provide on it?

This is a notice that you may serve on your tenants when they have broken terms of your tenancy agreement and you would like to end the tenancy. A section 8 notice is available here. You must give between 2 weeks’ and 2 months’ notice dependent on what terms of the tenancy that they have broken. Click here for Shelter's advice on each ground along with the notice periods.

How must I serve a Section 8 or Section 21 Notice & what happens if the tenant doesn't leave?

As this is a legal process it is important that you can satisfy a court that you have served the notice on the right individual, i.e. the tenant at the time and that they have been able to consider the notice. There are several methods available to you to serve a legal notice including first class post to the relevant address, however, to be absolutely sure that the document gets delivered hand delivery is hard to dispute as you can categorically state that you delivered the document to the address/person. It is advisable that you keep a record of whichever way you choose to serve a notice as you may need to rely on this information in court at a later date. Please find a certificate of service form that you may wish to use to fulfil this here.

If your tenant does not leave at the end of the notice period, you will need to apply to Court for a possession order. If the tenant owes you rent, you will need to apply for a standard possession order, if they do not, you can apply for an accelerated possession order. Ultimately you can employ bailiffs to secure possession after you have been granted possession by applying for a warrant for possession. Please be aware that for tenancies starting before 27th February 1997, different processes apply. Please click here for the government's main page on eviction which has links to the legal forms required to progress your action. After your application for a possession order, the tenant will be notified and they will have 14 days to challenge it. Representations will be taken into account by a judge who may request a court hearing or make a decision based on the papers submitted. In granting a possession order, a judge can provide up to a further 6 weeks for the tenant to leave your property. 

However, before taking steps to recover possession of your property, you should consider discussing any underlying problems with your tenant, either directly or through a mediation service, and try to resolve these without recourse to court action. This could save you time and money. You can find more information and advice on how to resolve problems with your tenant without needing to go to court in Part 2 of Understanding the possession action process: A guide for private landlords in England and Wales.

If possession proceedings are commenced, at the case review stage, if both parties agree, the case will also be referred for mediation. The government is funding the Housing Possession Mediation Service (HPMS) which will be free to use for landlords and tenants. Where you and your tenant reach an agreement, the case will not proceed to a substantive hearing. This pilot will be available for at least 6 months from February 2021.

 

 

Last updated: 08 April 2021 12:33:44