Residential Leases

The law of leases is complex. What follows is a broad summary, but you should always get advice specific to your circumstances. In addition, a number of temporary measures have been introduced as a result of Covid-19. Separate advice should be taken on these

Private Residential Tenancy Agreements - SCOTLAND

A relatively new tenancy agreement has come into force in Scotland, known as the private residential tenancy. The new legal requirements for landlords and tenants are contained in the Private Housing (Tenancies) (Scotland) Act 2016. It replaces assured and short assured tenancy agreements for all new tenancies. As of 1st December 2017, every new tenancy is a private residential tenancy, providing that the tenant lives in it as their only or main home, the tenancy is not excluded under Schedule 1 of the Act, and the property is let to a person as a separate dwelling.

The agreement has introduced many changes and improvements to the private rented sector. Some of these include

• Open ended tenancy terms – there are no longer fixed terms in a tenancy agreement between the tenant and landlord. This means that a landlord can’t ask a tenant to leave just because they have been in the property for 6 months.
• Longer notice period – if a tenant has lived in a property for longer than 6 months, the landlord must provide at least 84 days’ notice to leave. If a tenant has lived in the property for 6 months or less, at least 28 days’ notice must be provided by the landlord, if they wish to end the tenancy. These provisions will not apply if a term in a tenancy has been broken.
• Rent increases –rent can only be increased once every 12 months, and 3 months’ notice must be provided prior to the increase. If the tenant believes the proposed increase to be unfair, they can refer it to a rent officer. This provision provides protection to tenants against excessive rent increases.

If the tenant wishes to vacate the property, a minimum notice of 28 days must be provided.

The statute provides for 18 grounds for eviction. The form that needs to be used is a ‘notice to leave’. The period of notice the landlord must provide to the tenant depends on how long they have been in the property and which ground the landlord relies on. The grounds can be divided into 4 broad areas:

• The property is required for another purpose;
• The status of the tenant;
• Conduct of the tenant;
• There is a legal reason why the tenancy can’t continue.

If the tenant refuses to leave the property after the notice period is over, the landlord must apply to the Housing and Property Chamber of the First Tier Tribunal for an eviction order. The notice of leave which was given to the tenants, as well as a section 11 notice sent to the council informing them the possession action is being taken, must be included in the application.

There are 10 mandatory grounds where the tribunal has no discretion to refuse the eviction if the ground is proved. The remaining 8 grounds are discretionary, where the tribunal should consider whether it is reasonable to grant an eviction order.

Assured & Short Assured Tenancies - ENGLAND & WALES

It is important to note that, assured and short assured tenancies which began before 1st December 2017 can continue until they are brought to an end by either the tenant or the landlord. This type of tenancy has been replaced by private residential tenancies.

If the tenant wants to leave under an assured / short assured tenancy, they must inform the landlord in advance (give notice). The amount of notice a tenant is required to provide should be noted in the tenancy agreement.

Certain requirements and processes must be met if the landlord wants to evict a tenant from the property. This will depend on whether the tenancy is assured or short assured. To bring a short assured tenancy to an end, it is imperative that:

• The tenancy has reached it’s ‘ish’ (end) date;
• A Notice to Quit has been served;
• There is no ongoing tenancy;
• An additional notice (s33 notice) stating that the landlord wants the property back has been served; AND
• A Section 11 notice must be sent to the local council to inform them that repossession action may be taken.

Assured and assured shorthold tenancies (ASTs) are commonly used in England. With an AST, landlords typically let residential properties to tenants for a fixed period of six months. After this initial agreed period, the landlord can evict the tenant without giving a reason. In contrast, an assured tenancy provides tenants with far greater security of tenure in the long term. This means that they are able to continue to occupy the premises after the lease has come to a natural end, usually either until they choose to leave, or the landlord gains possession on one of the grounds contained in the Housing Act 1988. Under the AST, however, the landlord has an automatic right to regain possession at any point after the fixed term of the tenancy agreement, providing that they provide reasonable notice and comply with the formal requirements. Under an assured tenancy such an automatic right does not exist, thus granting the tenant greater security of tenure.

To regain possession of a property under either an assured tenancy or AST, a Section 8 Notice must be given. This must inform the tenant of the ground(s) on which the landlord is relying on to make the order and when they can apply to court. There are 17 different grounds, and the landlord may be able to use more than one. If the notice is invalid, the court might not make an eviction order.

A section 8 notice will contain the earliest date that a court action can start. The notice period would be between 2 weeks and 2 months. This depends on which ground(s) the landlord included. The notice won’t be valid if it doesn’t include a date or if the wrong amount of notice was given.

It is important to note that a landlord can apply for a bailiff’s warrant if the tenant has either stayed after the date on an outright order, or doesn’t keep to the conditions of a suspended possession order. The court will usually only stop the eviction at this stage if the order was made on a discretionary ground.

The content of this website is for general information only and should not be relied upon. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice.