1. Outline of Residential Landlord and Tenant Law
LawWorks Training
21 April 2015
Vivien Gambling

2. Common problems
Landlord has threatened to evict eg due to rent arrears
Rent arrears due to delays in housing benefit
Landlord fails to carry out repairs
Landlord wants to put the rent up
Landlord threatens to change the locks
Deposits – protection & recovery

3. The Framework
A tenancy is a grant of an interest in land for a period of time
Fixed term eg 6 / 12 months; or periodic eg weekly / monthly
Contractual relationship
Security of tenure – what are the restrictions on landlord’s ability to evict the tenant
Procedural / substantive security of tenure – must a ground for possession be proved?

4. Analyse the Agreement Contract principles apply – written/oral terms
No intention to create legally binding contract, eg family arrangement or ‘favour’
Sham agreements – eg “holiday let” – look at substance not the label
Sharing accommodation – joint or separate tenancies? Or separate licences (eg hostel)
Surrounding evidence – s, texts, policies

5. Types of tenancies Depends on –
(a) Landlord – “private” landlord / social landlord
(b) The date the tenancy commenced
Shake up - Housing Act 1988 ( )
Tenancies granted by private landlords and Housing Associations will be -
Assured tenancy (AT)
Assured shorthold tenancy – only if landlord served a proper notice of AST
The HA 1988 created a presumption of AT

6. Assured tenancy/ Assured Shorthold Tenancy
Assured tenancy – substantive security of tenure – landlord needs ground for possession
Assured shorthold tenancy – procedural security of tenure – landlord can follow a procedure and obtain a possession order – but beware deposits & houses in multiple occupation! Tenant might have a defence!
Human rights / public law defences

7. Housing Act 1996 on AST’s
Between & , to create an AST landlord had to serve a notice of AST at the start and the tenancy had to be for 6 months or more.
Landlords frequently failed to get it right
1996 Act reversed the “presumption” of AT – a tenancy created after will be an Assured SHORTHOLD tenancy, unless landlord served notice that it would be an AT
Housing Associations – use of ATs / ASTs

8. ATs – usual grounds for possession
Schedule 2 Housing Act 1988
Ground 8 – mandatory ground for possession 8 weeks or 2 months rent arrears (draconian!)
Housing Associations – use of Ground 8
Ground 10 (rent arrears)
Ground 11 (persistent rent arrears)
Nuisance
NB – demolish or extensive works which cannot reasonably be done with tenant there
Not occupying as main or principal home

9. AST – accelerated possession proceedings
Landlord might choose to use the ‘assured tenancy’ grounds and procedure instead
Accelerated proceedings – no court hearing?
Fixed term (if any) has ended
2 months notice given – (before, on or after the end of the fixed term tenancy, but now for NEW tenancies, not before 4 months from start – s 36 Deregulation Act 2015

10. AST’s – s 21 notice etc
Notice for periodic assured / assured shorthold tenancy – no longer has to end on last day of period of the tenancy - Spencer v Taylor
s 35 Deregulation Act 2015 confirms this - for new tenancies !
S 40 Deregulation Act 2015 – repayment of rent where tenancy ends before end of a period

11. Local authority tenancies (1)
Secure tenancies – very good security of tenure - no equivalent of Ground 8!
Housing Act 1985 & 1996; Localism Act 2011
Grounds for possession – mostly fault based & reasonableness
Succession – prior to Localism Act 2011 – successors include member of deceased’s family who “resided with” for 12 months prior to death
Post Localism Act tenancies – succession by spouse, civil partner or someone living as such

12. Local Authority tenancies (2)
Introductory tenancies (HA 1996) – “probationary” tenancy for 12 months
LA can serve notice. Tenant has right to request a review. Beware time limit – says 14 days, but in effect 13 days! (read the Regs)
No requirement of reasonableness - but possible challenges – public law principles
Introductory Tenants (Review) Regulations 1997

13. Local Authority Tenancies (3)
Flexible tenancies – s 154 Localism Act 2011
Objective – affordable housing for those who need it
“Secure” tenancy for not less than 2 years
Formal notice & review procedure (limited grounds)
Possession – must give not less than 6 months notice that it does not propose to renew & 2 months notice of possession

14. “Excluded Occupiers” (1)
Protection from Eviction Act 1977
Landlord can evict without a court order
Landlord must still terminate the agreement – contractual notice / reasonable notice (licencee)
Resident landlord (or family) - sharing or same building
Licensees of hostels / temporary housing for homeless – research or specialist advice

15. “Excluded occupiers” (2)
Desnousse v Newham [2006] EWCA Civ 547
R (CN) v Lewisham LBC; R (ZH)v Newham LBC [2014] UKSC 62
Temporary accommodation – majority of SC judges held that the licences granted to homeless applicants were not licences to occupy premises as a dwelling, and so were in effect excluded from section 3 Protection from Eviction Act
Court proceedings were not always required for the local authority to obtain possession

16. Termination By tenant – check terms of written agreement
Tenant of periodic tenancy – Notice to Quit – strict requirements (must be at least 28 days, plus other) – unless waived
Surrender – there must be unequivocal conduct by landlord and tenant
Landlord may still have a claim for rent, eg for period of notice, or if fixed term, for remainder of the fixed term, unless re-let
Landlord’s notice (& court order may be necessary)

17. Joint tenancies – beware!
Joint periodic tenancy – one joint tenant can unilaterally serve Notice to Quit & end it
Spouse/ civil partner/ cohabitant might be able to apply for an injunction to prevent service of Notice to Quit
Social landlord (public authority) must consider human rights of other occupier
Policy on relationship breakdown?
Recognise the need for advice on family law !

18. Landlord’s obligation to provide info
S.1 Landlord & Tenant Act 1985 – tenant can request landlord’s name & address from person receiving rent or agent. Failure to supply within 21 days is a criminal offence
S. 48 Landlord & Tenant Act 1987
Landlord must provide tenant with address in England & Wales where notices can be served on the landlord. Rent not due until complies.

19. Deposits (1) Housing Act 2004 introduced deposit protection
Effective as of April 2007
Initial legislation was poorly drafted
Amendments – Localism Act 2011 –
Landlord had 30 days to
Protect the deposit – recognised scheme
Provide the Prescribed Information
From , existing tenancies – comply by 6 May 2012

20. Deposits (2)
Housing (Tenancy Deposits Prescribed Information) Order 2007 [SI 2007/979]
Superstrike v Rodrigues [2013] EWCA Civ 669 – even if original tenancy began pre-2007, when fixed term ends, a periodic tenancy arises; requirement to comply
DEREGULATION ACT 2015 amends the rules on tenancy deposits

21. Deposits (3)
For landlords that did not comply by , & for subsequent tenancies where landlord has failed to comply: -
If 30 day time limit was missed, s 21 notice – 2 months & claim for possession – cannot be relied on – s.215(1) & para 42 Superstrike. Landlord would have to return the deposit & start again
Penalties – up to 3 x the deposit. Discretion.

22. Deposits (4)
When the fixed-term tenancy ends, the periodic tenancy is a new tenancy – therefore there was a fresh requirement to deliver the Prescribed Information (PI)
When Prescribed Information has not been sent, any section 21 notice to end an AST is not valid until the PI is sent – [s.215 (2)]
No deposit, no penalty – the vanishing deposit!

23. Deposits (5)– Deregulation Act 2015
Amends regulations Housing Deposits (Provision of Information) 2007 – information provided by agents(s 30)
No section 21 notice may be given “at a time when” the deposit is not protected & information has not been given (s 31)
Deemed compliance - pre April 2007 – landlord to comply within 90 days from this Act or (if earlier) before court hearing/ determination (s 32)
Post April 2007 “replacement” tenancy – deemed compliance if landlord has already complied (s32)

24. Houses in Multiple Occupation
Relevance to Assured Shorthold Tenancies & possession proceedings
Housing Act 2004
Section 21 notice is not valid if landlord is obliged to register for a licence and has not
Helpful defence to a claim for possession but only where the property is a HMO

25. Repairing Obligations (1)
Section 11 Landlord& Tenant Act 1985
Landlord’s obligation to keep in repair the structure, exterior & installations for supply of gas, electricity, heating, water, hot water & sanitation
Internal plaster is part of the “structure” [Grand v Gill 2011 EWCA Civ 554]
Parties cannot contract out
Express terms may be more extensive
No right to heating!
Compensation – potential defence to rent arrears

26. Repairing obligations (2)
Tenant’s right to withhold rent to pay for repairs – Lee Parker v Izzet [1971] 1WLR 1688
Strict procedure – notice to landlord of repairs & reasonable period has elapsed
Notice of intention to use rent for repairs
Tenant to obtain at least 2 estimates & serve on landlord with final deadline to repair
“account” to landlord – eg supply copy invoice
Use with caution – eg simple repairs

27. Anti-Social Behaviour, Crime & Policing Act 2014
New mandatory ground for possession against secure and assured tenants (including assured shorthold tenants); includes: -
Tenant or person residing in or visiting has been convicted of a serious offence
Offence is connected to the locality, or landlord or person employed by landlord
Secure tenants (only) have right to review

28. Potential Defences to possession claims on mandatory grounds
Technical defences
Human rights – Article 8 – social landlords (or “public body”
Public law defences / judicial review
Disability discrimination – Equality Act 2010; it may be unlawful to bring a claim for possession but there has to be a link between the disability & the breach of tenancy and landlord may be able to show proportionate

29. Retaliatory Eviction Section 33 Deregulation Act 2015 – read in full
Applies to NEW tenancies (see s 41)
If a relevant notice (re disrepair) has been served by the local authority, landlord cannot serve a s 21 notice within 6 months
s 21 notice is invalid if tenant has complained in writing of disrepair, landlord has not provided reasonable response within 14 days, and tenant has complained to local authority which serves a notice.

30. Immigration Act 2014
Prohibition on person with no leave to be in the UK from entering into residential tenancy agreements
“Excluded agreements” – includes various including social housing, hostels & refuges, student accommodation
Landlord must not let premises to disqualified persons [section 22 IA 2014]
Tenant with “limited leave” may become disqualified
Landlord should make reasonable enquiries; ongoing duty
What about people who cannot PROVE permission?
Codes of Practice – including Anti-Discrimination Code !

31. Sources of information
Defending Possession Proceedings – Legal Action Group (LAG)
Housing Law, an Adviser’s Handbook – by Diane Astin (LAG)
Shelter Website
Legal Action magazine & the Adviser
Housing Law Practitioners Association
Nearly Legal website