Tenants Rent Landlord
Structure: Issues, Legal rules and application
Introduction
John is the owner of Home Acres, a large country estate, in the middle of which stands Mansion House.
Two years ago, John granted David the use of the self contained basement flat in Mansion House for four years in a written agreement for 600 a month. Six months ago, David decided to take an extended holiday abroad and put all his furniture and belongings into storage to avoid being spoiled in his absence.
Syed is occupying a small cottage on the estate under a weekly license agreement with an agreement to provide cleaning and washing services which Syed has refused.
A year ago, John granted Rocket down Company a ten year lease by deed of The Barn which has been converted into offices.
John recently sold Home Acres to Peter who wants David Syed and Rocket down Company that they must leave Mansion House immediately.
Legal Issues: DAVID
Tenants who pay rent to a private landlord are assured short hold tenants. Obviously David has moved in to this flat after 28 February 1997 and has control over the flat which prevents John from entering the flat as and when he wants. Presumably, the basement flat has its own entrance although it forms a part of the Mansion House.
From the information given it is clear that David is an assured short hold tenant and therefore has a right to live in the flat for a period of time. David's tenancy is for the period of four years which is known as a fixed term tenancy. As such David has a right to prevent people from entering the house freely and has full control over it.
The fact that David has taken an extended holiday for six months does not give the Landlord a right to evict him assuming he has kept his rent up to date and there are no other issues such as anti social behaviour or illegal activity etc. It is also necessary to show that the flat is your only or main place of residence in order to claim your status as an assured short hold tenant.
Generally, you are allowed to live away from your rented accommodation and still keep your assured short hold tenancy provided you can establish your intention to return by leaving personal possessions in the flat. However, in your case you kept your family assets and other personal possessions in a storage which could be deemed as you intended to leave the flat. The fact that you returned to the flat from your extended holiday it is possible to argue that you took the family assets and other belongings out in order to protect them from getting spoiled in your absence and you had every intention of returning.
As a general rule, Landlord has no right to evict under assured tenancy especially if the person is up to date with the payments, well behaved and not anti-social, and then there is no other reason for eviction. As David has a fixed term tenancy the only way to evict him is by serving a notice of eviction on him if his deemed tenancy agreement provides for it. It will also dictate the length of notice to be given. The tenancy is in the fixed term and therefore Peter has to prove a good reason why he should be evicted.
Peter, the new owner of the estate will need good reasons for eviction. He will have to go the court to go through the possession procedure. One argument in his favour will be if the flat is for his own use and the flat is same part of his property. In this case Peter will have to serve a notice on David that he intends to make an application for possession of the flat. This will lead to a short hearing and provided the Judge is satisfied that all parties have been served proper notice, at least 2 weeks. David may be able to get some extra time for stay before he can move out as he has been away for six months.
In Simon Abbott v Douglas Bailey a tenant claimed an unlawful eviction under Section 27 of the Housing Act 1988 as well as breach of covenant for quiet enjoyment and wrongful eviction as it was claimed that the notice to quit was ineffective.
In Islington London Borough Council v 1. John Clonis 2. Clonis Property Services Ltd the Magistrates concluded that the tenant had vacated the property and was not the residential occupier for the purposes of the Protection form Eviction Act 1977 and that the landlord had reasonable cause and honestly believed that the tenant did not occupy the premises any longer. A tenant entered into tenancy agreement for six months but fell into arrears. During the meeting with the Landlord he agreed to move out on 21 January but landlord claimed he agreed to move out on 12 January and accordingly landlord fitted a padlock preventing the tenant from entering the premises and occupation. It was held that the landlord had acted reasonably in assuming the tenant had vacated the property considering his behaviour previously and the state of affairs.
In case of David as long as he is up to date with his rent and had not damaged the property then Peter cannot evict him without going through proper procedure.
SYED
Syed is occupying a small cottage on the estate under a weekly license agreement. A license agreement gives Syed a personal right to occupy the property he is paying rent for. This has created a periodic tenancy and can be treated as a tenancy even when there is no fixed term of maximum duration as the law regards the period of the lease as one week which can then be renewed every week if both parties agree to it. A license does not give a propriety rights to the tenant but merely gives a personal permission to occupy the land in question. John has given his permission to occupy the flat on his estate as a part of a contract between them, creating a contractual license.
As a licensee Syed cannot claim statutory protection under the Landlord and Tenant Act although he may be able to have some protection under the Housing Act 1985. Therefore Peter will have to serve a notice to vacate the property on Syed, making it clear that he does not want Syed to continue his tenancy. Generally, the period of notice depends up on the periodic term of that specific periodic tenancy. In this case Syed must be given one week's notice as a minimum as it is weekly tenancy. However, it would be advisable to Peter to give two weeks notice to allow Syed to find alternative accommodation. However it is subject to four weeks notice which is required before the date on which it is to take effect.
In Kaur v Gill his Honorable Judge Nourse LJ, Kennedy LJ and Auld LJ awarded damages for breach of covenant for quiet enjoyment and wrongful eviction. The County Court awarded a tenant 500 in damages for breach of covenant for quiet enjoyment and 15,000 were awarded for breach of section 27 and section 28 of the Housing Act 1988 for loss of occupation as the landlord evicted the tenant unlawfully. The judgment handed down distinguished Mason v Nwokorie where it was held that damages for the loss of right to occupy should be set off against the statutory damages for wrongful eviction. The judge in this case did not award 500 for any loss of right to occupy but it was for breach of covenant for quiet enjoyment, the statutory damages for wrongful eviction were under different head of loss. The Appeal was dismissed.
ROCKETDOWN LIMITED(The Company)
The tenants who occupy premises for the purpose of a business have a security of tenure bestowed up on them by the Act . The Act applies to any tenant who occupies premises for the purpose of a business carried on by him.. The company is a business tenant as it is using a building which is converted into offices for its business purposes. Therefore it will not come to an end at the expiry of a fixed term of ten years. The tenancy will continue even after the contractual termination date by virtue of section 24 of the Act and has to be ended in one of the ways specified by the Act. The tenant in such a situation has a right to apply to the Court for a new lease to be granted. Peter as a landlord can only oppose on the specific grounds laid down in the Act.
John has granted ten years lease to the company which is construed as a Tenancy Agreement. Pursuant to section 25, Peter has to serve a landlord's notice on Rock down Company or Rockdown Company will have to serve a tenant's request for a new tenancy under section 26 of the Act.
Peter will have to serve a notice in the prescribed form which must be given not less than six months, or more than twelve months, prior to the date on which he wants to terminate the tenancy in it. This will allow the Company to serve a counter notice within two months. In the notice the Company will have state whether or not they are willing to give up possession on the specified date.
The notice served by Peter must state whether he is likely to oppose an application by the Company to the Court for a new tenancy. It further has to state which statutory grounds he is likely to rely on. It is likely that if the Company wishes to serve counter notice for a new lease then Peter, the landlord may be willing to grant a new lease by terminating the current lease and granting a new lease but on different terms. In practice it is usually on a higher rent. The Company has two months from the service of the section 25 notice by the landlord to apply to the Court requesting a new lease as there is no right to apply for an extension of the time limit set in the Act and therefore the deadlines must be complied with. The Company needs to consider the section 25 notice carefully to see if the landlord has indicated whether or not he would oppose the application.
In Barclays Bank Plc v 1. Andrew John Bee 2. Angela Elizabeth Bee Barclays took a 15 year lease at a property owned by the defendants in December 1982. In June 1997 the defendants wrote to Barclays that the lease is coming to an end and that they intended to develop the property to make it more attractive for the buyers in the future. The question was raised whether the defendant's intention was clear to Barclays. Although the documents sent by the defendants could not have been disregarded, these could not be served as effective section 25 notice.
Conclusion
Whether it is a short hold assured tenancy or a periodic license, a tenant cannot be evicted by the landlord without proper notice unless there is good reason such as illegal activity. In any case Peter will have to get a court order to evict David and Syed from their flat, although it could be argued in case of David that when he bought the estate from John he genuinely believed that David had left and the flat was vacant due to the fact that he went on six months extended holiday. The only way he can avoid being evicted is by proving he has kept his rent up to date and had no intention of leaving.
In case of a business tenant such as Rocketdown, unless the statutory procedures set out in section 25 and 26 are complied with, no eviction can take place. If the landlord fails to comply it could be construed as unlawful eviction.
1999 CA Simon Brown LJ, Wilson J 20/1/99
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