Residential property disputes between landlord and tenant can be hugely stressful, upsetting, and frustrating. So, if you are a landlord facing these issues, it’s essential to have an experienced solicitor by your side. This article answers some of the most frequently asked questions we get here at Setfords on the topic of residential property litigation.
Quick links:
- What can I do if my tenant isn’t paying rent?
- What to do if a tenant refuses to leave.
- What is a Section 8 notice?
- What is a Section 21 notice?
- Can I evict a tenant without going to Court?
- Do I need a tenancy agreement?
- Can I still evict a tenant if there is no written tenancy agreement?
- How long does it take to evict a tenant?
- My tenant has breached the lease. What should I do?
- Can I forfeit the lease as a landlord?
- What do I do if there are trespassers or squatters on my property?
- Service charges: what do I need to know?
- What is the right of first refusal?
- Who is responsible if the tenant has damaged the property?
- What should I do if the tenant leaves possessions in the property?
- Can I increase the rent on my property?
- What can I do to reduce landlord-tenant disputes in the future?
- Do I need a solicitor for dispute resolution?
What can I do if my tenant isn’t paying rent?
A tenant not paying rent can be a considerable concern for landlords. If you find yourself in this situation, there are some steps you can take.
To start, it’s a good idea to keep up accurate documentation concerning recent payments from all tenants. This way, you will have a record of who has not paid and the amount owed. Then, you should talk to the tenant as soon as possible, as it may be possible to resolve the issue with a conversation.
If this doesn’t work, you should send your tenant a formal written letter. It should be delivered by hand if possible so that you can verify that they have received it. The letter should outline that the tenant must pay rent immediately, pay future rent on time, and failure to do this may result in Court action. If they have not paid 14 days after rent is due, you should deliver them another letter stating that you intend to seek possession of your property if they do not pay. After that, you should send them another letter after 21 days of no payment. If the tenant has a guarantor, you can also write to them 14 and 21 days after the rent is due.
A tenant will be two months in arrears once they have not paid rent for one month, and the next month’s rent is due. From here, you can start the process of seeking possession of your property. This can take two routes: a Section 8 Notice or a Section 21 Notice. More information about these is provided below.
At this point, you are entitled to take legal action to recover possession of the property, as well as the rent arrears and reasonable costs associated with this. The Court may order your tenant to leave the property and pay you a specific amount. Another option may be that the Court decides the tenant can stay in the property, but they must pay you what they owe and abide by the tenancy agreement in the future.
What to do if a tenant refuses to leave.
Firstly, you must ensure that you go through the correct procedures to evict your tenant. This means obtaining a Section 21 notice to evict them at the end of a fixed-term tenancy, or a Section 8 notice if they have broken the terms of the tenancy agreement.
However, if you have gone down this route and the tenant will still not leave, your next step will be to take your tenants to Court. Here, the Court will review all of the evidence and provide you with a possession order to reclaim your property.
If your tenant still does not leave after this, you can apply for a warrant of possession. This means that bailiffs can remove the tenants from the property so that you can take back possession of it.
What is a Section 8 notice?
A Section 8 notice is an eviction notice used in England and Wales. It can be issued at any point during the tenancy, as long as there are legal grounds. The most common ground for a Section 8 notice is rent arrears (the arrears must be two months or more). But, other reasons are possible, such as:
- The tenant has breached the terms of the tenancy agreement.
- The tenant has caused neglect to the property.
- The tenant is causing a nuisance to others (most likely neighbours)
- The tenant has given false information when entering into the tenancy.
- The tenant is using the property for illegal activities.
- The mortgage lenders are repossessing the house (as a landlord, you must advise the tenant of this possibility before they enter into the tenancy agreement).
The Section 8 notice will detail when the tenant must leave the property. It is usually two weeks, four weeks, or two months after the notice is served.
To serve a Section 8 notice as a landlord, you must follow the proper procedures to stay on the right side of the law. More information about this is available above, under the question ‘What can I do if my tenant isn’t paying rent?’
What is a Section 21 notice?
A Section 21 notice is another type of eviction notice. It can only be given to tenants who are at the end of the fixed term of their tenancy agreement or are on a periodic tenancy that does not have a specific end date.
Unlike a Section 8 notice, a reason does not have to be given for a Section 21 notice. So, it is often used when a landlord wants to move back into a property they are renting out, for example.
If a tenant stays beyond the date set out in the Section 21 notice, the landlord must go to court to evict them. It is illegal to do otherwise.
Can I evict a tenant without going to Court?
It is possible to evict a tenant without going to Court in many cases. For example, with an excluded tenancy. Typically, this means that your tenant lives as a lodger or similar in your home. To evict them, you must give them appropriate notice to vacate the property, either verbally or in writing. This usually is one payment term, so it will be one month’s notice if the tenant pays rent monthly.
However, most tenancies are not excluded tenancies. So, this means that you will need to go through the Courts to get a Section 21 or Section 8 notice to evict them. However, you will not physically attend Court unless the tenant refuses to leave after receiving the notice. Even then, Court attendance may not be necessary, although it is likely that you will still have to pay a Court fee. Your solicitor will be able to advise your further on this matter.
Do I need a tenancy agreement?
Yes, it is advised to have a tenancy agreement between landlord and tenant. It can be written or verbal, although a written agreement is usually preferable to be referred back to easily. A tenancy agreement should set out any rights or rules for tenants living in the property, as well as the responsibilities of the landlord.
However, even if you do not have a formal tenancy agreement, both landlord and tenant still hold certain rights and responsibilities. For example, tenants have the right to live in a safe environment, regardless of whether they have a written or verbal tenancy agreement or not. But, they also must look after the property and pay rent to the landlord on time.
The nature of a verbal tenancy agreement means that one will usually be in place between a landlord and tenant, even if it has not explicitly been agreed upon. To form a verbal tenancy agreement, there must be an offer, acceptance of the offer, and payment. Most tenancies will fit these criteria and so a verbal agreement will be assumed.
Can I still evict a tenant if there is no written tenancy agreement?
Yes. There will probably be an assumed verbal tenancy agreement in place. So, you can evict your tenant. However, you must still follow the correct procedures. So, if you want a tenant to vacate your property, you cannot evict them without serving them with either a Section 8 or Section 21 notice.
How long does it take to evict a tenant?
The time it takes to evict a tenant can vary hugely, depending on the circumstances and how straightforward the process is. For example, if your tenant leaves voluntarily, the process can take a matter of weeks. But, if you end up having to go to Court to apply for a warrant of possession, it can take months or even the best part of a year.
Your solicitor will be able to advise you on how long the process is likely to take and what you can do so that it runs as smoothly as possible.
My tenant has breached the lease. What should I do?
There are several lease breaches that a tenant could carry out. Most commonly, these breaches relate to unpaid rent, damage or disrepair to the property, or making changes to the property without the landlord’s consent.
You may resolve the issue simply by speaking to the tenant. Alternatively, in cases where the tenant has caused damage or disrepair to the property, you may be able to carry out the remedial works and charge the tenant. However, if you wish to evict the tenant, you will likely have to apply for a Section 8 notice. The details of this are outlined above.
Can I forfeit the lease as a landlord?
Forfeiting the lease as a landlord means that you regain possession of the property against the tenant’s wishes because the tenant is in breach of the lease. If you want to forfeit the lease, a forfeiture clause must be written into the tenancy agreement. It can only be forfeited once the tenant has breached the lease for a specific time (usually at least 14 days).
The landlord cannot forfeit the lease unless they have first issued a Section 146 notice (unless the tenant’s breach is non-payment of rent). This notice sets out what the tenant has done to breach the lease and how they can remedy this within a set timeframe.
Forfeiture of the lease is a complex area. Your solicitor will be able to advise you further about your specific circumstances.
What do I do if there are trespassers or squatters on my property?
If you find trespassers or squatters in your home, and you did not initially permit them to be there (e.g. as a tenant), you should call the police as soon as possible. Squatting in this way is illegal. The police will determine if the squatting activity is unlawful. They also have the legal authority to enter the property and arrest the squatters. The maximum penalty for squatting is up to six months in prison, a £5000 fine, or both.
Squatting is illegal if the squatters did not have permission to live or be in the property and know, or should know, that they should not be there. However, there are some circumstances in which squatters cannot be removed from the property by the police. For example, if the tenant initially had permission to live in the property (as a tenant), their tenancy has come to an end, and they have not moved out, they cannot be arrested for squatting. Or, if they have fallen behind on paying their rent, they also cannot be removed for squatting. You will have to start formal proceedings to evict the tenant and reclaim your property in these cases.
Please note, this applies to residential properties only.
Service charges: what do I need to know?
Service charges are a common cause of dispute between landlords and tenants. If you’re the landlord of a leasehold property, you need to know what the lease entails and your responsibilities. The lease should also set out how much the tenant should pay for these services (the service charge).
It is important to note that landlords are under no obligation to carry out services not detailed in the lease. On the other hand, tenants are not required to pay for anything not included.
As a landlord, it’s also essential to ensure that you are demanding the service charge correctly and are complying with the statutory requirements. Otherwise, the tenant may be within their rights to withhold payment. However, there is still a risk that the tenant may deem the service charge unreasonable despite this and apply to the Tribunal to rectify it.
To give you the best chance of avoiding this, you can consult with a solicitor to ensure that everything is in place. A solicitor will also be able to assist you in the event of any disputes arising.
What is the right of first refusal?
Suppose you own the freehold to the property and want to dispose of it. In that case, the right of first refusal means that you must notify the leaseholders of your intention to sell the freehold and offer them the opportunity to purchase it. For the first right of refusal:
- The properties involved are flats, and there are at least two of them.
- 50% or more of the building is for residential use.
- More than 50% of the flats must be occupied by leaseholders who qualify for purchase.
To be qualified, a leaseholder must:
- Have a lease term of 21 years or longer.
- Not have a protected shorthold or assured tenancy.
- Not be a business or service tenant.
- Not be the leaseholder of more than two flats in the building.
There are a few exemptions to this, for example:
- It is not a purpose-built block, and the freeholder has been living there for twelve months or more.
- The freeholder is a public sector landlord, such as a local authority or housing association.
- Half or more of the leaseholders have NOT expressed a wish to purchase the freehold through the right of first refusal.
- 50% or more of the internal floor space is used for a non-residential purpose.
Who is responsible if the tenant has damaged the property?
Ultimately, any damage to the property caused by the tenant, their pets, or any of their visitors is their responsibility. As such, they must inform the landlord so the damage can be assessed, and pay for any needed repairs.
If damage is discovered at the end of the tenancy that is not natural wear and tear, the landlord can use the tenant’s deposit money to pay for like-for-like repairs.
Note that there is a clear difference between natural wear and tear and damage to the property. Landlords should not charge tenants for any wear and tear caused by living there.
If the damage is caused by crime (not carried out by the tenant) or is otherwise not the tenant’s fault (e.g. it was caused by bad weather, a leak in a neighbouring property, by a tradesperson, and so on), the landlord is responsible for paying for the repair. Many landlords choose to take out insurance to cover this sort of damage.
What should I do if the tenant leaves possessions in the property?
If a tenancy has ended, but the tenant has left some of their belongings in the property, it can be tempting to remove them straight away. However, these possessions still belong to the tenant, and removing them without gaining confirmation from the tenant that they have been abandoned may be unlawful. It could result in a civil case being brought against you by the tenant.
However, it is generally considered that if a landlord makes genuine attempts to contact the tenant and ask them to remove the items, but these attempts are not successful, they can dispose of the items in a way they see fit.
Bear in mind that situations involving possessions left in a property can be more complex than this. A solicitor who has expertise in this area will assist you with your specific case.
Can I increase the rent on my property?
It is possible to increase the rent you charge tenants in a property. However, there are set times when you can do so, depending on the type of tenancy. For a periodic tenancy (i.e. a rolling tenancy with no fixed end-date), you typically can increase the rent once a year with your tenant’s agreement, but no more often. For a fixed-term tenancy (that ends after a set amount of time), you must have the tenant agree to the rent increase, or you cannot increase the rent until the fixed term ends.
When increasing rent on any property, any increase must be fair and in line with local rates. The tenant must also permit the rent increase if it is more than previously agreed.
Landlords must give tenants at least one months’ notice for any rent increase unless it is a yearly tenancy, whereby they must give six months’ notice.
What can I do to reduce landlord-tenant disputes in the future?
Landlord-tenant disputes can, unfortunately, sometimes be unavoidable. However, you can do a few things to minimise the chances of them happening. Perhaps the most crucial aspect is to have a clear, comprehensive written tenancy agreement that both parties sign. Landlords should also do a thorough reference check on tenants before moving in. And, any communication should be clear and followed up in writing.
Do I need a solicitor for dispute resolution?
This area of law is complex and can often be hard to interpret by anyone who is not an expert. So, in many cases, it can be invaluable to have a solicitor to help you throughout the dispute resolution process. Our solicitors are here to help you come to a positive resolution, whether through processes such as mediation and arbitration, or a claim through the Courts.