Director disqualification – what should I do if I receive notification of an investigation?
How does a landlord evict a tenant from a residential property if the tenant refuses to move out after being served with the required notice?
In a nutshell, the landlord needs to apply to court. But courts tend to be tenant friendly and this can be a frustrating experience for landlords.
Most residential properties are let on what is called an ‘assured shorthold tenancy’ (AST). An AST allows the landlord to recover possession from the tenant at the end of the contractual term so long as they serve the relevant notice on the tenant (called a ‘s21 notice’).
There can be questions about the validity of a s21 notice though if the landlord has failed to deal with the tenant’s deposit in the manner required by statute.
On the creation of an AST, it is mandatory for the landlord to place the tenant’s deposit in an authorised Tenancy Deposit Scheme (TDS). This must be done within 30 days of receipt of the money. The tenant (or person who has paid the deposit on the tenant’s behalf) must also be given certain prescribed information about the TDS. This includes confirmation of the amount of the deposit and the address to which the tenancy relates.
Landlords will often serve a s21 notice at the same time as the AST is granted. They annex the notice to the AST so that they can be certain to recover possession of the property at the end of the term.
Landlords need to be aware that a s 21 notice served in this way may not be valid. Under the Housing Act 1988, if a landlord fails to protect the deposit in a TDS or provide the prescribed information, the s21 notice cannot be served.
Let us take the above example. The landlord has served the tenant with a s21 notice on signing the tenancy agreement. At the time of service of the notice, the landlord has not placed the deposit in a TDS or provided the prescribed information. On this basis, the s21 notice cannot be served with the AST.
So, how does a landlord obtain possession in this situation? The landlord’s options are to:
- Serve a section 8 notice (a formal notice under the Housing Act 1988) on the tenant seeking possession of the property. The landlord would need to rely on one of the specific grounds for possession under s.8, such as the wanting to use the property as his or her own home.
- Return the deposit to the tenant. Once the deposit has been returned, the landlord is able to serve a s21 notice. The money must be in the hands of the tenant before service of the s21 notice. In 2015, Barnet County Court determined that a s21 notice was invalid where a landlord had instructed the release of the deposit to the tenant but served the s21 notice before the money had been credited to the tenant’s account. Recovery of possession by serving a s21 notice is known as the ‘accelerated procedure’ as it is as quick way for landlords to obtain possession of a property. The accelerated procedure will only be available to landlords if they can confirm on the court’s claim form that all requirements of the TDS have been complied with. If they cannot, (for example, because they haven’t complied with the TDS requirements), the landlord can use the ‘standard procedure’ for possession instead.
In future articles we will look in more detail at these court procedures.
What happens if the tenant’s deposit is not placed in a TDS within the 30-day deadline?
Unfortunately, this cannot be resolved retrospectively. So, even if a landlord protects the deposit in the TDS after the 30-day deadline has passed, they will still not be permitted to serve a s21 notice. A landlord would need to invoke one of the procedures set out above if they wish to gain possession of their property.
What happens if the prescribed information has not been provided to the tenant?
A landlord who has placed the deposit in a TDS within 30 days of receipt but fails to provide the prescribed information within that period must make sure that they serve the prescribed information on the tenant as soon as possible. After doing this, a s21 notice can be served.
Financial sanctions
As well as being prevented from serving a s21 notice, landlords can face financial sanctions for failing to comply with the TDS requirements. The penalty can be between one to three times the amount of the deposit so, landlords beware.
Conclusion
This is a whistle-stop consideration of some of the problems landlords can face if they fail to comply with the TDS requirements. If you would like further information regarding the issues discussed above or recovering possession of a residential property in general, please contact Hannah Slaughter at hannah.slaughter@bracherrawlins.co.uk.
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