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Recovering possession of a property let on an AST

For many landlords the ability to recover possession of their property from tenants is one of their key concerns, along with will the tenants look after the property and will they pay the rent. Below Michelle Goodrum, a Senior Assistant Solicitor, addresses some of the key questions that may be of concern to a landlord trying to recover a property from a tenant who is not in breach of their tenancy.

What is an AST?

As assured shorthold tenancy (“an AST”) is a form of lease that is normally used when letting residential property for a short term. The Housing Act 1988 and supplementary legislation governs the rights and obligations of landlords and tenants who are party to an AST. The majority of short tenancies are likely to be an AST. Two points to note are that a tenancy will not be an AST if the tenant is a company or if the annual rent is over £100,000. To ascertain whether you are dealing with an AST you should take professional legal advice.

How do I recover possession?

The law sets out a procedure for landlords to terminate an AST. In order to recover possession a landlord should serve a so-called “section 21 notice” - that being the section of the Housing Act under which notice is given.

When can I, and when can I not, give a section 21 notice?

There are a number of legal requirements that must be complied with when giving a tenant a section 21 notice. Some key points are:-

  • A section 21 notice must be in the form prescribed by law if the tenancy started or was renewed after 30 September 2015.

  • A landlord cannot serve a section 21 notice during the first four months of the initial tenancy.

  • The notice can be used for either a periodic or fixed term tenancy; however, in the case of a fixed term tenancy, the date on which possession is required must be after the end of the fixed term of any tenancy.

  • A landlord can not use a section 21 notice if the property is a house in multiple occupation and does not have an HMO licence.

  • A landlord cannot use if the local authority has served either a notice that it will do emergency works on the property or an improvement notice on the property in the last 6 months.

  • Generally, a landlord cannot use the notice if any deposit taken from a tenant has not been lodged in a recognised tenancy deposit scheme or if the information prescribed by law has not been provided to the tenant within 30 days of the taking of the deposit. In that case the deposit would have to be returned to the tenant before a section 21 notice could be served.

  • The landlord must have given the tenant an Energy Performance Certificate, the current gas safety record and the government’s ‘How to Rent’ guide before serving the notice.

What notice must I give the tenant?

You must give the tenant at least 2 months’ notice. If the tenancy is periodic, and rent is paid less frequently than every 2 months, then you must give the tenant at least the same notice as the payment period.

What will happen at the end of the tenancy?

In the majority of instances, the tenant will hand over the keys and vacate the property when the notice expires. In that event the tenancy will automatically come to an end.

It is a good idea to liaise with the tenant during the notice period to arrange for the return of keys and a check out inspection, which should be undertaken promptly at the end of the tenancy (ideally when the tenant hands over keys). You should also ensure you have forwarding and contact details for the tenants.

When the tenant vacates you should take meter readings and confirm the change of occupation to any utility companies, the local authority and any other relevant persons.

After the tenancy ends you will need to return the deposit (less any deductions) to the tenant in accordance with the rules of the relevant deposit scheme.

What happens if the tenant doesn’t vacate?

You will then need to apply to the court for a possession order. It is illegal to evict a residential tenant without a court order, so you should not in the meantime take any steps such as changing the locks to force them to leave.

Surprisingly even sending letters to a tenant threatening action can be construed as unlawful harassment depending on the circumstances so correspondence with the tenant should be dealt with carefully and preferably by a specialist property solicitor.

What happens if I want to end the tenancy early because the tenant has not paid the rent?

There is a more complex procedure involved which will be dealt with in a separate article. The key practical point is to address the problem immediately the tenant falls into arrears or if you become aware that they have broken the tenancy in some other way, such as unlawful subletting. Never allow a problem to drift or be fobbed off by excuses – it will only get worse. Take legal advice straight away.