Transcript - Acuity Legal

Acuity Legal Limited
3 Assembly Square
Britannia Quay
Cardiff Bay
Cardiff CF10 4PL
t: +44 (0) 29 2048 2288
f: +44 (0) 29 2049 5588
e: [email protected]
w: www.acuitylegal.co.uk
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
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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
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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
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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:
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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 OccupiersProcess 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 OccupiersProcess 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 OccupiersProcess 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 OccupiersProcess 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 OccupiersProcess 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 OccupiersProcess 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 OccupiersProcess 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 OccupiersProcess 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