This is a hands-on guide to the most common problems landlords encounter when tenants behave in a way that breaks the terms of their tenancy agreement. Knowing your options will help you navigate these situations, hopefully letting you resolve them with the tenant and go on to have a peaceful tenancy.
Problem with Tenant’s Behaviour
Landlords can include terms in the contract that require the tenant to do or withhold from doing certain things. These clauses must be fairly drafted and agreed to under the Consumer Rights Act. They are worth including because if they are not adhered to, and landlords can prove this, then they may be able to rely on Ground 12 of Section 8. That means they can serve an eviction notice on the grounds that the tenant is breaking the tenancy agreement.
Ground 12 is a ‘discretionary’ ground. This means that even if you establish the contract was broken, the court is not bound to grant possession. The court has discretion. Although a judge is unlikely to make a possession order if a tenant breaks a few minor clauses, repeated and serious breaches of the terms of the tenancy can result in a judge awarding possession to the landlord.
Creating fines or penalties for tenants who break terms of their contract is now illegal. It was banned by the Tenant Fees Act. Attempting to charge prohibited penalty fees risks fines of up to £5,000.
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Many landlords do not want their tenants to smoke inside the property, as this can cause a lasting odour, stain ceilings and cause burns on furnishings and floors. It is common to include a clause against this in the contract.
If your tenants are smoking inside the property against the terms of your agreement, then, as always, the first step is to speak to them and ask them to stop, explaining that it is in your agreement that they would not do so. If they continue to smoke, then there is not so much that you can immediately do. Explaining that you won’t be able to give them a great reference for the next time they go through tenant referencing may or may not be of any leverage, depending on the context.
Having your contract’s no-smoking term legally enforced is difficult, as landlords will struggle to prove that the tenant has indeed smoked in the property. Damage like stains and burns can be evidenced photographically, but getting images can only really be done at an inspection once the tenancy has ended. Smells are virtually impossible to prove.
Damage to the property and its furnishings can be claimed from the tenancy deposit at the end of the tenancy, but any damage does need to be proven in the case that the tenant disputes the claim. Given that the deposit schemes accept evidence via email, there’s not a lot landlords can do to prove a smokey smell requires them to buy new curtains.
If you wish to avoid tenants who smoke, the best you can do is to advertise “no smoking in the property” and to speak to the tenants about it in person, perhaps when they view the property. You can also get a reference from their previous landlord and find out if this caused any problems in the tenant’s last home.
Landlords can include terms that require tenants to gain their written permission to keep a pet. The term must say that the permission will not be unreasonably withheld, otherwise the term may be seen as unfair by the Consumer Rights Act and so be unenforceable.
If a tenant has moved in a pet without your written permission, then you can alert them to the situation and explain that this is against your contract. Again, a process of escalating from a polite request to stop breaching the contract, to a written warning, to explaining the consequences on any future referencing checks is sensible.
With pets, you may be in a better situation to prove damage to the property than with the smoking example, as pets can leave fur, scratches and stains on furnishings, which can be evidenced. This allows you to claim money from the tenancy deposit in order to repair and replace furnishings.
Moving another person into the property
Another common complaint is that the tenants have moved additional people into the property; either allowing more adults to live with them, or subletting the property. A good, professionally-drafted tenancy agreement will contain clauses against both of these things occurring without written permission.
One line of thought is, “as long as the rent is being paid and the property isn’t being damaged, then what’s the big deal?” But things may not be so simple. An additional person may convert your property into an HMO, which requires a license to be obtained from the local authority. It may push your property into being ‘overcrowded’, which is a serious hazard according to the Housing Health and Safety Rating System (HHSRS) and could see you liable if people in the property are hurt.
Finally, if you have Rent Guarantee Insurance, then having an unregistered resident in the property may invalidate your terms, preventing you from receiving a payout from the scheme when you need it.
As with the other issues described above, it is best first to ask the tenant to stop hosting this extra person, then to escalate with a written warning, before finally serving an eviction notice if needed.
Noise and Nuisance
Tenants may sometimes behave in a way that causes complaints from neighbours or the local authority. On one level, this is ‘not your problem’ — unless, that is, the property is being let on a selective license.
Often, local authorities will have anti-social behaviour terms in their selective license agreements. This came in with the Housing Act in 2004 as part of New Labour’s ‘Respect’ agenda; the same body of thought that brought us ASBOs. If landlords fail to intervene in their ‘problematic’ tenancies, then they could have their licenses revoked, preventing them from letting the property in future.
But licenses aside, many landlords will want to try to help avoid any complaints from other residents. Landlords letting properties they own via leasehold may have their permission to let withdrawn by the freeholder if their tenants continually cause complaints.
Landlords can include terms in their contracts such as not to allow refuse to collect in gardens and to limit noise at unsociable hours. If these terms are broken and evidence collected (e.g. complaints from neighbours), then this may constitute enough evidence to rely on Section 8’s Ground 12. Landlords might also be able to use Ground 14, which specifically addresses antisocial behaviour.
As always, the best solution is to speak to the tenant to find out what their side of the story is and see if there are any easy solutions that will stop the behaviour and the complaints.
Breaking the Contract
Sometimes tenants will suddenly want to break the contract and move out of the property early, without giving proper notice.
If this is happening to you, read our dedicate guide to tenants breaking the contract.