The Practical Lawyer

A ‘surrender by law’ occurs when L or T carries out actions that are only compatible with a surrender (ie the ending) of the tenancy. Thus, it is the actions of the parties that count – not their intentions. If there is an act which is inconsistent with the continuation of the tenancy, so there is an unequivocal acceptance that the tenancy has ended, then that will be a surrender by law (even if that was not the intention).

Suppose you have a monthly oral tenancy. At the end of each month, that periodic tenancy automatically continues. But, what is happening from a legal point of view: is it (i) a new tenancy that is granted every month, or (ii) the original tenancy remains in place but with a series of extensions?

Possession orders are generally obtained in the county court and enforced by a county court bailiff. But it is a common cause of frustration that L may have waited several months from issuing a claim to obtaining a possession order, and then face delays of up to 12 weeks for a bailiff appointment. In those circumstances, Ls often seek advice about using a High Court enforcement officer (HCEO). They market themselves as being faster and more effective, although they are more expensive (between £400–£900, compared with £120 for a bailiff). But, there are different procedures for using HCEOs, depending whether the possession claim is against a (i) trespasser, or (i) non-trespasser. In this note, we look at the position as regards trespassers.

If the possession action is against a non-trespasser (unless it involves a mortgage possession claim), the claimant who wants to use a High Court enforcement officer must make two court applications. Firstly, there must be an application to the county court for an order transferring up to the High Court (s42 CCA 1984), and secondly an application in the High Court for permission to issue a writ of possession (under CPR 83.13(2)).

There are severe constraints on L’s ability to forfeit a residential long lease for non-payment of rent. In particular, s166 and s167 of Commonhold and Leasehold Reform Act 2002 apply. Under s166, T is only liable to pay rent if it is demanded in a prescribed form (and accompanied by prescribed notes explaining the effect of s167). In turn, s167 says there can be no forfeiture unless the rent arrears exceed £350, or an amount of rent has been outstanding for more than three years.

Section 20B(1) LTA 1985 imposes an important time limit for L in making a service charge demand: there is an 18-month time limit from the date when the costs are ‘incurred’ (unless T was notified in writing that costs had been incurred and that they would subsequently form part of a service charge). But, the key point is that there will normally be an 18-month time period from when the costs were ‘incurred’ – failing which the costs will be irrecoverable from T.

Most leases will contain provisions for the recovery of legal costs from defendant Ts. However, the scope of cost recovery clauses varies, and leases rarely provide for full indemnity costs to be recovered by L. Instead, the most common cost recovery provision will be a variant of this: ‘to pay to the lessor all costs charges and expenses at any time during the said term incurred by the lessor in or in contemplation of any proceedings under s146 LPA 1925’.

L should look at what is ‘reasonable’ when deciding whether to replace or repair windows; if both courses of action are ‘reasonable’ then L can choose whichever they prefer.

An assured T must be occupying the dwelling house as their ‘only or principal home’. If T has two homes, then it is for the court to decide which is the ‘principal’ home.

The minimum energy efficiency requirements mean that, from April 2018, Ls will no longer be able to grant tenancies to properties with an EPC of F or G. This will cover the extension or renewal of a tenancy to an existing T – and it will also include a T who has a fixed term which expires, and then becomes a periodic tenancy. Moreover, from April 2020 it will not be possible to even continue letting a property to an existing T if it has an EPC of F or G.