house chains

Possession: A Quick Guide

An Overview of Possession – service notice on a tenant.

OK, guys, we will apologise in advance, this isn’t going to be anywhere near entertaining.

Nevertheless, it needs writing, we are going to, for the sake of continuation get straight to the point, avoid our usual satiric approach and simply get down to business!

Shall I, shan’t I?

So, after much deliberation and consideration, you have decided that you would like to take back control of your property.  There could be a multitude of reasons for this; but whether the tenants’ departure is benign or not, the strategy considerations will be broadly the same.

In the next few paragraphs, the intention is to run through strategic choices, touching on the legal procedures.  As ever, if you have any detailed or specific questions, you may need to consult a lawyer.

Carrot or stick?

The best option to get possession of your property is to find a solution agreeable with your tenants.  If you manage to do this, then make sure that you get the agreement in writing as soon as possible. This is normally with either a ‘notice to quit’ or a deed of surrender.

The difference between them is that a ‘Notice to Quit’ is a unilateral notice from the tenant informing you that they intend to leave whereas the Deed of Surrender is an agreement by the landlord and the tenant to terminate the tenancy, so it can be as flexible as you are.

The main practical differences then are that the Deed of Surrender should be used if the tenancy is still in the fixed term and it can include financial considerations. The Notice to Quit should be aligned with the terms in the tenancy agreement so in theory is less flexible. With either form, once signed the tenant is committed to leaving on the agreed date unless the landlord agrees to a change.

If the tenant makes it known that they intend to be problematic about leaving, then the landlord will need to serve notices and could ultimately require court action and bring in the bailiffs.  These tools should be avoided if possible because they are time-consuming and expensive.

However, if the tenant won’t sign the paperwork then is clear that they do not intend to make possession easy. At this point it is worth mentioning that there are only two legal weighs to end a tenancy, the first mentioned above, voluntary surrender; the second is to obtain a possession order from a court.

What about abandonment? Yes, I know, new rules are in play but we’ll save that for a different article.

Help, I don’t know where to start?

First, you need to understand the difference between Section 21 and Section 8 notices.

A Section 21 notice is the no-fault route. It is designed for scenarios in which the landlord would like to take possession – it could be to move back in, to sell the property etc.  Therefore, it follows the tenancy agreement clauses closely, i.e. two months (periods) notice, it cannot be served to expire within the fixed term, and there is no recovery of monies – other than pro rata rent.  So long as your procedure is correct, the judgement is guaranteed.

Section 8, on the other hand, stipulates failures (called the grounds for possession) by the tenant to stick to the clauses of the tenancy.  There are currently 17 grounds you can use, be careful some are not mandatory so they will be at the discretion of the judge as to whether you get possession.  It also differs from the Section 21 because you can include monies in the judgement to recover the arrears.

Both routes have a standard form that you need to use, a Form 3 for a Section 8 and a Form 6a for the Section 21.  There are grandfather rules for these forms, so you need to check that you don’t fall foul of them if you are dealing with an old tenancy.  You need to be up to speed with how the notices should be served.

You can serve both notices and then choose which path to follow at a later date.  However, if you need to go to court, you will need to decide which notice to use and make this extremely clear to the tenant so that they don’t use confusion as a ‘get out of jail free’ card.

However, before you start completing any forms, it is worth checking that you have set up the tenancy correctly, meeting all the legal requirements.

You should have supplied the following paperwork;  

  • A written Assured Shorthold Tenancy Agreement
  • The up to date ‘How to Rent’ leaflet.
  • The Deposit Prescribed Information – in the correct format.
  • The property ‘Energy Performance Certificate’.
  • The Gas Safety certificate.
  • Moreover, that you have protected any deposit taken in an approved scheme, if you haven’t done any of these things it would be worth ‘playing catch up’ as soon as possible, the implications for not doing these things is a collapsed court case – expensive, time consuming and avoidable!.

It may be worth mentioning that when you serve notice, it’s a good idea to include the most recent ‘how to rent’ leaflet as it may differ from the one issued at the start of the tenancy. You can download the latest version here

The notice has expired, but nothing has happened?

If the notice has expired, then you will need to initiate court action.  You complete the paperwork (or do it online) and enclose the evidence.  The court issues you with a date at which you should get a possession judgement granted.

But the tenants won’t leave?

Then you will need to get the bailiffs to evict them. This requires more paperwork (and money) to book them through the county court.

You should now have possession of your property.

Final thought.

The best way to protect yourself starts at the beginning of the tenancy.

Get the right tenants and set up the tenancy right.

AdobeStock_49309089-1024x731

GDPR – What’s All The Fuss?

So, what is GDPR?

The analytical department of WOPT has deduced with great scientific and complete conjectural accuracy that 97.42% of all emails currently received are from companies that you purchased a candle from 12-years ago asking you to stay in touch with them.

This is because In the past when you looked online at something like a lightbulb all relevant and often irrelevant companies were informed through data sharing. The outcome was random emails or pop-ups from ‘Lightbulbs ‘R’ Us’, ‘We buy any old lightbulb.com’ and the life and times of Thomas Eddison. 

Great news for us, GDPR is designed to stop this

GDPR stands for ‘General Data Protection Regulations’, and in a nutshell, it’s the new European wide rules that will ultimately govern what information or data an organisation or individual can hold on other people and how they can ultimately use such information. It prevents companies or individuals from sharing and selling your personal data and browsing preferences.

What does it change for us?

Not much really for our community (landlords and property managers).

You will need to be a little bit more thorough and robust with your data handling, have a think through where and how you store others’ data and what you do with it.

If you are just using the information to run your property empire, then there shouldn’t be any change.  There are five reasons (shown here on our free ‘privacy statement’ template) why you can hold and process data, and they apply to you broadly as follows.

You will receive ‘consent’ to hold and process data on your application forms.

If the applicant is successful, you have a ‘legitimate interest’ to hold and process data about them and their tenancy.

That’s great, but what do I need to do?

Well, like we have just mentioned, you’ll need a privacy policy so it’s not a bad idea to work through our free template here and as you write yours it will show what is needed. 

To make it simple, think about the information you hold and what you do with it.  The RLA has produced an excellent article if you want to get right into the detail.  CLICK HERE

Although you should already be registered, it is important that, if not you now register with the ICO

How does it affect the information I hold?

You will need to be clear about exactly what you are holding, how you are protecting it and how long you keep it for.

The first bit, what you are holding, is fairly straightforward but you may get asked by a client or tenant about what you hold on them.  You have a time limit on getting back to them with this info. Currently this is 30 days.

You then need to make sure you are holding it in GDPR compliant repositories. 

We use cloud data storage, property management software and a referencing company.  All have declared GDPR compliance.

There are also time limits as to how long you hold the data for so have a plan to have a good clear out every now and again.

So thats it! That’s what all the fuss is about?

Well yes and no, our article only covers how the changes will affect us as landlords or property managers, it is far more complicated for larger organisations, but that’s none of our concern here.

We suggest, like we always do at WOPT, to do your due diligence and if you are in any doubt seek further advice. The rules are new and whizzy so no doubt the ‘no-win no-fee’ brigades are looking for an angle.

Be thorough with your business administration – see our article about systemising your business for more ideas. 

Just one final piece of mitigation before we leave you

If you decide to pass on your tenants info to a far eastern prince, who emailed you out of the blue, because he needs this information to get a large ‘tax-free’ cash sum out of his country and into your bank account then we can only wish you the very best of luck, not even the careful guidance of WOPT can save you here!!