View all articles
Lockdown2 more worries for landlords with difficult tenants. I’m going to talk about two issues which are causing many landlords a great deal of stress at the moment. I acknowledge that the biggest issue is rent arrears, but I am not going to talk about that…
Abandonment
Some tenants decided to leave their rented properties and return home or lockdown with friends which is fine, but it causes several issues for landlords:
- Had the fixed term ended?
- Did they give notice?
- Was their rent paid up to date?
But the biggest issue – Did they tell the landlord or did they just move out? Abandonment occurs when the tenancy has not been ended officially and the tenant has left the property, seemingly permanently but the landlord cannot rely on the way things appear. It is usually accompanied by lack of communication or acknowledgement of any communications sent to them. The landlord is left with no rent and no legal possession of the property and therefore cannot re-let it. This has always been a big problem but it has increased during the pandemic. It could have been avoided:
As long ago as the Housing and Planning Act 2016 there was provision for a procedure to deal with Abandonment in Part 3 Recovering abandoned premises in England.
The problem is that there has never been a Commencement Order which means that it has not yet come into force!!! By May it will have been 5 years since the Act became law – without Part 3 commencing.
I am not going into why this hasn’t happened nor will I speculate that if it were to the benefit of tenants it would have happened, but let’s look at what we will be able to do once it is enforceable:
“Recovering abandoned premises
A private landlord may give a tenant a notice bringing an assured shorthold tenancy to an end on the day on which the notice is given if—
(a)the tenancy relates to premises in England,
(b)the unpaid rent condition is met (see section 58),
(c)the landlord has given the warning notices required by section 59, and
(d)no tenant, named occupier or deposit payer has responded in writing to any of those notices before the date specified in the warning notices.
58 The unpaid rent condition
(1)The unpaid rent condition is met if—
(a)rent is payable weekly or fortnightly and at least eight consecutive weeks’ rent is unpaid,
(b)rent is payable monthly and at least two consecutive months’ rent is unpaid,
(c)rent is payable quarterly and at least one quarter’s rent is more than three months in arrears, or
(d)rent is payable yearly and at least three months’ rent is more than three months in arrears.
(2)If the unpaid rent condition has been met and a new payment of rent is made before the notice under section 57 is given, the unpaid rent condition ceases to be met (irrespective of the period to which the new payment of rent relates).
(3)In this section “rent” means rent lawfully due from the tenant.
59 Warning notices
(1)Before bringing a tenancy to an end under section 57 the landlord must give three warning notices, at different times, in accordance with this section.
(2)The first two warning notices must be given to the following using one of the methods in section 61(2) or (3)—
(a)the tenant,
(b)any named occupiers, and
(c)any deposit payers.
(3)The third warning notice must be given by fixing it to some conspicuous part of the premises to which the tenancy relates.
(4)Each warning notice must explain—
(a)that the landlord believes the premises to have been abandoned,
(b)that the tenant, a named occupier or a deposit payer must respond in writing before a specified date if the premises have not been abandoned, and
(c)that the landlord proposes to bring the tenancy to an end if no tenant, named occupier or deposit payer responds in writing before that date.
(5)The date specified under subsection (4)(b) must be after the end of the period of 8 weeks beginning with the day on which the first warning notice is given to the tenant.
(6)The first warning notice may be given even if the unpaid rent condition is not yet met.
(7)The second warning notice may be given only once the unpaid rent condition has been met.
(8)The second warning notice must be given at least two weeks, and no more than 4 weeks, after the first warning notice.
(9)The third warning notice must be given before the period of 5 days ending with the date specified in the warning notices under subsection (4)(b).
(10)The Secretary of State may make regulations setting out the form that the third warning notice must take.
(11)In this Part—
“deposit payer” means a person who the landlord knows paid a tenancy deposit in relation to the tenancy on behalf of the tenant;
“named occupier” means a person named in the tenancy as a person who may live at the premises to which the tenancy relates.”
In a Nutshell – let’s use an example of a tenancy, here rent is paid monthly in advance:
- Where we believe that the property has been abandoned
- AND
- where a tenant has not paid rent for 2 months
- AND
- the tenant does not respond to any of the two warning Notices.
- A Notice of immediate possession can be posted at the property on the day that the 2 months rent becomes due AND ONLY AT THIS POINT CAN WE CHANGE LOCKS AND TAKE BACK THE PROPERTY
- The timing of each Notice is crucial because the tenant is given 8 weeks from the date of the first Notice to respond to each Notice
Remembering that this is not yet in law it would be the first time that a landlord would not need a Court Order to enter his own property when he believes the tenant has abandoned but where the tenant has not surrendered the tenancy. This could have saved many landlords a lot of stress during this difficult time and more importantly it could prevent a tenant entrapping a landlord into taking back the property then coming back and claiming compensation because he “had locked down with his family and didn’t pick up the messages”. Unlawful Eviction is defined in the Protection from Eviction Act 1977 here
Until the Commencement Order is made:
An Abandonment Notice has no legal status and can only be used to inform the tenant that the locks have been changed and where the new keys can be obtained. The problem is that this Notice must be put on the outside of the building and is there for anyone to see. This could be an invitation to squatters or anyone who is minded to enter and cause damage. I am not aware of any case where it has been tested with an insurance claim but I could well see how a Loss Adjuster might use this to reduce the liability. Apart from cost, the hassle of removing a squatter is very stressful and to be avoided. I do not believe that there is any advantage to changing locks and posting an Abandonment Notice and particularly since many landlords believe that by posting such a Notice they have satisfied the legal requirements to repossess their property – THIS IS ABSOLUTLEY NOT THE CASE. Only a Court Order has the power to give us back possession at the moment.
The Commencement of Part 3 Recovering abandoned premises in England needs to be top of the list of Asks by Landlord and Letting Agent organisations once COVID-19 is over.
Anti-Social Behaviour
Tenants behaving badly isn’t new; this can be anything from stealing food from the communal fridge to harassment/bullying, aggressive words or actions, and in the extreme, acts of violence or sexual assault. When this happens between married or cohabiting couples it’s usually best to leave the support to those who are trained and experienced. Unfortunately we cannot stand back when these issues occur in an HMO which we are managing because we have a legal responsibility to the other tenants to protect them. This is what is known as responsibility without authority and it’s a big problem for landlords, especially at a time when tenants know that we cannot evict them. Most of us are not trained to deal with serious bad behaviour, particularly acts of violence and therefore we need to understand exactly what we can do and how. We must also remember that we can ask the local authority to help
Evicting the Perpetrator
Ground 7A was added to Section 8 of the Housing Act 1988 in 2014 having been introduced in the Anti-social Behaviour Crime and Policing Act 2014. Ground 7A is an additional ground for possession when using Section 8 and it is a mandatory ground meaning that we only need to prove the case and a Judge must give us possession there is no discretion.
The problem is that many landlords are not aware of what we must do to prove our case and many think that this is a quick fix during the pandemic, it is not. There are 5 conditions one of which must be met:
“Condition 1
(a) the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a serious offence, and
(b)the serious offence—
(i)was committed (wholly or partly) in, or in the locality of, the dwelling-house,
(ii)was committed elsewhere against a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or
(iii)was committed elsewhere against the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and directly or indirectly related to or affected those functions.
Condition 2 a court has found in relevant proceedings that the tenant, or a person residing in or visiting the dwelling-house, has breached a provision of an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, other than a provision requiring a person to participate in a particular activity, and—
(a) the breach occurred in, or in the locality of, the dwelling-house, or
(b) the breach occurred elsewhere and the provision breached was a provision intended to prevent—
(i) conduct that is capable of causing nuisance or annoyance to a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or
(ii) conduct that is capable of causing nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions.
Condition 3 the tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under section 30 of the Anti-social Behaviour, Crime and Policing Act 2014 consisting of a breach of a provision of a criminal behaviour order prohibiting a person from doing anything described in the order, and the offence involved—
(a) a breach that occurred in, or in the locality of, the dwelling-house, or
(b) a breach that occurred elsewhere of a provision intended to prevent—
(i) behaviour that causes or is likely to cause harassment, alarm or distress to a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or
(ii) behaviour that causes or is likely to cause harassment, alarm or distress to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions.
Condition 4
(a) the dwelling-house is or has been subject to a closure order under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014, and
(b) access to the dwelling-house has been prohibited (under the closure order or under a closure notice issued under section 76 of that Act) for a continuous period of more than 48 hours.
Condition 5
(a) the tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under—
(i) section 80(4) of the Environmental Protection Act 1990 (breach of abatement notice in relation to statutory nuisance), or
(ii) section 82(8) of that Act (breach of court order to abate statutory nuisance etc.), and
(b) the nuisance concerned was noise emitted from the dwelling-house which was a statutory nuisance for the purposes of Part 3 of that Act by virtue of section 79(1)(g) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance).
Condition 1, 2, 3, 4 or 5 is not met if—
(a) there is an appeal against the conviction, finding or order concerned which has not been finally determined, abandoned or withdrawn, or
(b) the final determination of the appeal results in the conviction, finding or order being overturned.
In this ground—
“relevant proceedings” means proceedings for contempt of court or proceedings under Schedule 2 to the Anti-social Behaviour, Crime and Policing Act 2014;
“serious offence” means an offence which—
(a) was committed on or after the day on which this ground comes into force,
(b) is specified, or falls within a description specified, in Schedule 2A to the Housing Act 1985 at the time the offence was committed and at the time the court is considering the matter, and
(c) is not an offence that is triable only summarily by virtue of section 22 of the Magistrates’ Courts Act 1980 (either-way offences where value involved is small).”
At the moment we are under special measures relating to notices seeking possession because of Coronavirus Serious Anti-Social Behaviour is one of the things which enable us to give 1 month Notice of our intention to begin eviction proceedings.
“ Where the landlord is seeking possession on ground 7A (with or without other grounds), court proceedings cannot begin earlier than 1 month from the date this notice is served and not before the date on which the tenancy could have been brought to an end by a notice to quit served at the same time as this notice. A notice seeking possession on ground 7A must be served within specified time periods:
Where the landlord proposes to rely on condition 1, 3 or 5: within 12 months of the conviction (or if the conviction is appealed: within 12 months of the conclusion of the appeal);
Where the landlord proposes to rely on condition 2: within 12 months of the court’s finding that the injunction has been breached (or if the finding is appealed: within 12 months of the conclusion of the appeal);
Where the landlord proposes to rely on condition 4: within 3 months of the closure order (or if the order is appealed: within 3 months of the conclusion of the appeal).”
After the date shown, on the Section 8 Notice, in line with the periods above, we can start court proceedings at once but not later than 12 months from the date on which the notice is served after 12 months the notice will expire and you will need to begin again.
I didn’t want to begin a new year with a negative article but it’s important to acknowledge that some of our colleagues are suffering additional stress from delinquent tenants.
Wishing you good health in 2021.
Mary Latham
