Recovery and Repossession of Property Gareth Roberts and Steve Morris, Acuity
Recovery of Property Commercial Property – the Landlord and Tenant Act (LTA) 1954 Residential Property – Secure Tenancies under the Housing Act (HA) 1985 Recovery of property from unauthorised occupiers
Recovery of Commercial Property Operation of a break clause Breach of lease and forfeiture Expiry of contractual term Termination of a periodic tenancy SECURITY OF TENURE Does the Tenant have security? If so, how can the lease be terminated?
Does the Tenant have security of tenure? s23 LTA 1954 A tenancy Relating to premises Occupied for the purpose of a business carried on by the Tenant Exclusions Has the lease been contracted out?(s24-28)
How a Landlord ends a lease with Security of Tenure Forfeiture – s24(2) LTA 1954 Notice under s25 LTA 1954 Counter-notice to Tenant notice under s26 LTA 1954 s30(1) LTA 1954
s25 LTA Notices Validity Competent Landlord When can it be served? Not more than 12 months nor less than 6 before the termination date stated in notice Not to expire before the end of a fixed term tenancy
Court Action Outline of the Court Process Practical Considerations Empty Rates Security of Rent Termination periods if uncertainty surrounding security?
Recovery of Residential Property Secure Tenancies Common Law Tenancies s3 Protection from Eviction Act 1977 s6 Criminal Law Act
Secure Tenancies s79 HA1985 Secure tenancy arises at any time where: Residential accommodation let as separate dwelling Landlord Condition is satisfied Tenant Condition is satisfied Not excluded by Schedule 1 HA or s89-93 HA
Secure Tenancies The Landlord Condition – s80 HA1985 Satisfied by Local Authority The Tenant Condition – s81 HA 1985 “The Tenant is an individual and occupies the dwelling house as his only or principal home, or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only principal home”.
Secure Tenancies Excluded Tenancies (examples) Long Leases exceeding 21 years Introductory tenancies Demoted tenancies Service tenancies Agricultural tenancies Business tenancies Student lettings Development Land
Secure Tenancies s82 HA 85 A weekly or periodic tenancy or a tenancy for a fixed term but subject to termination by the landlord can be brought to an end by one of the following: an order of the court for possession and execution of the order a demotion order Exercising the forfeiture or re-entry clause of a fixed term secure tenancy: The Court will not order possession in pursuance of that provision but in a case where the Court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and a periodic tenancy will arise.
Proceedings for Possession s83 HA 1985 – Landlord must: Serve notice of Seeking Possession on the Tenant - prescribed form – Secure Tenancies (Notices) Regulations Specify grounds of possession in s84 and Schedule 2 HA 1985 and give details of that ground Specify date after which possession proceedings may begin (except ground 2) Satisfy Court that ground is made out and that conditions related to that ground are made out
Grounds for Possession s84 HA 85 – Ground for Possession: Grounds for possession are found in Schedule II to the HA 85; Part I of Schedule II – Grounds 1 – 8; court must consider it reasonable Part II of Schedule II – Grounds 9 – 11; there must be suitable alternative accommodation available for the tenant Part III of Schedule II – Grounds 12 – 16 must be both reasonable and have alternative accommodation available for the tenant
Recovery of Property from unauthorised occupiers Commercial Property Residential Property
Unauthorised Occupiers Commercial Property - Claims against a former tenant: Expiry of a fixed term where 1954 Act is contracted out; (don’t accept rent after period ends – periods tenancy) Operation of Break Clause Forfeiture Trespass
Unauthorised Occupiers Commercial: No Pre Action Protocols specifically Tenancy MUST be correctly terminated Expiry of contractual term Operation of break clause Forfeiture Residential: x2 Pre Action Protocols based on (1) rent arrears and (2) based on Mortgage or Home Purchase Plan Arrears Forfeiture – cannot without Court Order Trespass – cannot against a tenant/subtenant PROTECTION FROM EVICTION ACT 1977 – it is an offence to evict an occupier of residential premises without a court order or to harass an occupier of residential premises.
Unauthorised Occupiers- Process under CPR 55 Commercial – Possession Claim under CPR 55: There must not be any form of consent from the Landlord Also process for claims for rent arrears or damages Claim Form: Identify the land which the claim relates to States whether land is commercial State the ground on which possession claimed Give details of any mortgage or tenancy agreement Give details of any person or corporate entity who is in possession of the property If a claim against a former tenant must give details of the lease and how the lease came to an end
Unauthorised Occupiers- Process under CPR 55 Residential – Possession Claims under CPR 55: Claim Form – depends on nature of claim; Rented Residential Premises and Mortgaged Residential Premises Claim form must include; Identify the land which the claim relates to Confirm that the claim relates to residential property state the ground on which possession is claimed Give full details of any mortgage or tenancy agreement Give details of every person or corporate entity who is in possession of the property If claim includes rent arrears then full breakdown of rent owed is required.
Unauthorised Occupiers- Process under CPR 55 Service of the Claim Form: Personal Service First Class Post Leaving documents at the defendant’s last known address Service Upon Persons unknown: If the claim is against trespassers who are unknown, service can be effected by attaching the claim form and any evidence to the property that is subject of the claim. The documents must be clearly visible and pushed through a letterbox marked to `the occupiers`. If dealing with land, the documents should be attached to stakes that are then positioned around the area of land
Unauthorised Occupiers- Process under CPR 55 Service of the Claim form for Trespass: Commercial Property - at least 2 clear days before the hearing in trespass claims; together with all witness evidence Residential Property – at least 5 days before he hearing in the case of trespass At least 21 days before the hearing date in case of all other possession claims for both Commercial Certificate of Service is required
Unauthorised Occupiers- Process under CPR 55 Defendant’s Response in both Commercial and Residential Defence must be served upon Claimant within 14 days – but judgement in default cannot be obtained as with other claims No Defence is required in claim for trespass
Unauthorised Occupiers- Process under CPR 55 Evidence - Witness Statements - Commercial and Residential Reasons why there is a trespass i.e. claimant is registered at Land Registry as owner Why the tenant is not entitled to occupation i.e. the lease has come to an end Is rent areas also owed? Calculation of the mesne profits – rent that could have been achieved reference to the certificate of service should me made
Unauthorised Occupiers- Process under CPR 55 The Hearing – Commercial and Residential Usually within 8 weeks of the claim being issued Court can deal with the application as a final determination; or A Case Management Conference and give further directions Failure to attend – can still make Possession Order Possession Order – if court is satisfied with the claim an Order will be made Tenant must have sufficient time to vacate the premises
Unauthorised Occupiers- Process under CPR 55 Enforcement of a Possession Order If the tenant has not vacated, nor appealed; 1. Warrant of Possession in County Court 2. Writ of Possession in the High Court