Personal legal expenses insurance could help you and your family with a number of legal issues, depending on what cover you have. This site can help you learn about legal expenses insurance, how to get it, and how to use it if you have it.
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Before applying for a possession a landlord will need to serve a Section 8 notice using the prescribed form on the tenant as this will form part of the necessary steps/requirements for fault evictions before possession proceedings are commenced.
A Section 8 notice states that the landlord intends to seek possession of the property and also states the ground or grounds on which possession is sought. Without a valid notice a landlord will not get possession.
The amount of notice required to be given to the tenant will depend on the grounds under which possession is sought. The tenancy agreement must include a forfeiture clause in order to rely on these grounds. For further information on how to serve a Section 8, visit DAS Businesslaw.
A landlord can end a tenancy at the end of the fixed term (often 6-12 months tenure) provided that the tenant has been given two months written notice in the prescribed form of a Section 21 notice.
If the tenancy agreement includes a break clause the landlord may be able to serve a section 21 notice and/or any other contractual break notice required, before the end of the fixed term, however this cannot be served any earlier than the end of the fourth month of the tenancy (and therefore evicts the tenant no later than the sixth month of the tenure). For further information on how to serve a Section 21 see DAS Businesslaw*.
It may be possible for a landlord to end a fixed tenancy early (without the need of a break clause) if certain grounds have been met, see below;
It is possible to end the agreement at any time if both parties agree. This is called "surrender". There are two ways that surrender of a tenancy can occur: by "operation of the law" or by a "declaration of surrender".
For an agreement to be legally binding both sides must mutually agree, and it's always best to put what's been agreed in writing so everyone knows where they stand. If a joint tenancy is in place, all the joint tenants and the landlord must agree to the surrender.
When a tenant has legally surrendered the tenancy, then the landlord has the right of possession of the property under Section 5 of the Housing Act 1988.
The landlord needs to be sure that the agreement has been ended properly, before re-letting the property. If the landlord takes possession of the property when the tenant has not ended the agreement properly and both parties have not agreed, then the landlord could be accused of unlawful eviction. It is important that you take legal advice before entering a tenanted property to ensure you do not face any claim
A Section 8 or Section 21 is required - if the tenants refuse to leave at the end of a fixed term tenancy then a landlord will need to make an application to a court for possession. This will be a standard court possession procedure for a Section 8 notice. A Section 21 notice can be pursued by using either a standard or accelerated procedure, the accelerated option meaning there will not be a court hearing.
Walking away or posting the keys through the letterbox is called "abandonment" and will not end a tenancy agreement. The agreement will continue even though the tenants have left the fixed term tenancy and the landlord has the right to continue to charge rent (see below for more detail on fixed and periodic tenancies).
A landlord can apply for a court order to make tenants pay what is owed. It should be noted that if the property has since been let out rent can only be claimed for the period of time before a new tenant has moved in – the loss of rent.
The period of time that rent can be charged after a tenant leaves depends on the type of agreement.
In a fixed term agreement rent can continue to be charged up until when the term ends.
If the agreement is periodic, rent can be charged up until the time when the agreement would have ended had the tenant given the agreed period of notice.
If the tenant appears to have left the property during the tenancy without the landlord’s agreement, the tenant may have abandoned the tenancy.
A landlord must be certain of abandonment before re-letting the property or changing the locks. The best way to be sure of this is by contacting the tenant and ensuring they confirm they are abandoning the tenancy.
A landlord must make the necessary checks to confirm that the tenant has abandoned the tenancy. It could be that a tenant is on a long holiday, is in hospital or undergoing a short prison sentence.
In order to gain evidence as to whether or not abandonment has occurred the landlord can make enquires by speaking to the neighbours, finding out if rent is still paid, if the keys have been returned or whether the tenant’s belongings have been removed from the property.
If a landlord is almost sure abandonment has taken place, then they are advised to place a notice on the door of the property informing the tenant of their intention to regain possession of the property.
Illegally evicting a tenant is a criminal offence and may result in financial compensation, so landlords need to be careful before repossessing or re-letting a property and take the necessary precautions. It is important that you take legal advice before entering the property to ensure you do not face any claim.
It is important that you take legal advice before starting the repossession process. Your Legal Expenses Insurance with DAS provides access to a Legal Adviser 24/7. As part of your Legal Expenses Insurance you will also have access to DAS Businesslaw.
DAS Businesslaw can help landlords create a range of landlord documents such as eviction notices, ready-to-sign contracts (with built in e-signature functionality), tenant letters and guidance on a wide range of legal matters such as new legislation.
To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.