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propertylawyer, Solicitor
Category: Law
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Experience:  Property Solicitor with expertise in commercial and residential property transactions.
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I have a relatively new tenant in a property my wife and I

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I have a relatively new tenant in a property my wife and I own. She (the tenant) paid the first month rent (£700) upfront on 23rd June 2016, along with a deposit of £1000; however she failed to pay month two on 23rd July and has failed to offer any payment since.
We have written two letters to the tenant, sent five text messages, made three phone calls and called at the property three times since the missed payment; however the tenant refuses to discuss anything in relation to rent arrears.
Further to this she has applied for legal aid and had a court injunction issued to my wife. I understand there is also an injunction coming my way, however I was not at home when the injunction was served in person to my other half.
I am now looking for legal advice on this matter' can you help?

To bring a fixed term tenancy to an end before its contractual expiry date, the landlord can only use the possession procedure under section 8 of the Housing Act 1988.

There are three stages that the landlord must go through to regain possession during the fixed term of an AST:

Section 8 notice requiring possession

During the fixed term of an AST, the landlord may only end the tenancy if both of the following apply:

  • The landlord can satisfy one of grounds 2, 7(in England only), 7A, 8, 10 to 15 and 17.
  • The AST provides that the tenancy can be brought to an end on the ground in question, i.e Forfeiture .

Before the landlord can apply to the court forpossession of the property during the fixed term, it must serve a notice on the tenant under section 8 ofthe HA 1988. This notice is often referred to as a section 8 notice. The notice must be in the form prescribed.

The notice informs the tenant that:

  • The landlord intends to bring proceedings forpossession of the property on the grounds specified in the notice.
  • The proceedings will not begin before the date specified in the notice. (The notice period depends on which grounds are being relied on (section 8(4)-(4B), HA 1988).
  • The proceedings will not begin more than 12 months after the notice was served.

(Section 8(3), HA 1988.)

If the tenant does not leave the property when the section 8 notice expires, the landlord can apply for a court order for possession.

Applying for a court order for possession

The landlord must provide evidence to the court in support of the grounds relied on in the section 8 notice.

Order for possession under a mandatory ground

If the landlord's claim is based on a mandatory ground and is successful, the court must make an order for possession.

The court may only postpone the order forpossession for a maximum of 14 days or up to six weeks in cases of exceptional hardship (section 89, HA 1980).

Order for possession under a discretionary ground

If the landlord's claim is based on a discretionary ground, and the court is satisfied that the ground is made out, the court can make an order forpossession, if it considers it reasonable to do so (section 7(4), HA 1988).

On making an order for possession under a discretionary ground, the court's powers are extended (section 9(2), HA 1988). The court may grant:

  • An outright order for possession, which will require the tenant to leave the property quickly, usually within 14 days of the hearing.

  • A stay or suspension of the possession order forsuch period as the court thinks fit.

  • A postponed date of possession for such period as the court thinks fit.

The order for possession will usually be suspended or postponed if the tenant would be exposed to hardship if evicted on short notice, or to give thetenant another opportunity to rectify the breaches complained of, if that is possible.

Applying for a warrant for possession

If the tenant stays in the property beyond the date specified in the court order, the landlord must applyfor a warrant of possession. Enforcement of the order must be carried out by a court appointed enforcement agent under the warrant of possession.

I will send grounds for possession referred to above in a separate mail.

You will rely on mandatory ground 8, non payment of Rent.

The rent is unpaid at the time of the service of the section 8 notice and at the date of the hearing at least two months'rent is unpaid.

Is there a forfeiture clause in the AST? I can review the AST and confirm confirm by way of additional service for a small fee.

Do you have any questions or queries in relation to my reply? I am happy to assist further.

Please can I kindly request that you accept /positive rate my reply otherwise the website will not pay me for assisting you today. Many thanks.

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