Saturday, May 25, 2013
Serving a proper notice to quit on your tenantwith Natasha Rickards
Many Landlords face the trouble of regaining possession of their property which has been occupied by a tenant. The law, as it relates to landlord and tenants are often viewed as pro-tenant and with that said a landlord when exercising his right to obtain his property must do so cautiously and within the ambits of the law.
Where the term of a lease between the landlord and the tenant has not yet expired; a tenancy can be terminated by the service of a Notice to Quit. A Notice to Quit is often a written indication to the tenant that the landlord wants to recover his property for a specific reason. The notice may also be given orally, however this is not recommended because it may become difficult for the landlord to prove that notice was in fact given. In order for written notice to be effective, the notice must contain certain key elements - it must state the reason for the notice, the time given for the tenant to leave the premises must be adequate, and it must be properly served on the tenant.
The Rent Restriction Act ('the Act') outlines valid reasons that can be used by a landlord or his representative who wants to regain possession of his or her property. A landlord must ensure that upon service of the Notice to Quit at least one of the prescribed reasons is clearly stated in the notice, otherwise the landlord may run the risk of serving an invalid notice. Some of the grounds/reasons outlined in the Act include: the tenant has not paid his or her rent for at least thirty days after it became due; the tenant has broken an expressed obligation which was stated in a contract between the landlord and the tenant. In the case where a tenant has failed to perform an obligation, the tenant must be in default for at least thirty days; and the tenant has been guilty of conduct which is nuisance or annoyance to neighbours or has been convicted of using the premises or allowing the premises to be used for some immoral or illegal purpose, or the court has found that the premises has deteriorated or has become insanitary as a result of the acts of the tenant.
Other reasons are given, such as: the premises is required for the purpose of being repaired or improved; where the landlord requires it for occupation for himself or his dependents; and where the premises was intended to be used as a dwelling house and the tenant uses the premises for business or trade without the consent of the landlord.
The above list is not exhaustive as the Act contains a number of other grounds a landlord can use to lawfully gain possession of his or her property.
It must be noted that where a tenant pays up unpaid rent before the notice to quit expires, the notice will cease to have effect on the date of payment. A landlord cannot therefore regain possession of the premises if the Notice to Quit was based on non-payment of rent, and the tenant has fully paid up all outstanding rent before the expiration of the notice.
Apart from stating a valid reason in the Notice to Quit the landlord must ensure that an adequate period of notice is given to the tenant. This period can be provided for in the lease agreement between the landlord and the tenant, but where it is not, the common law applies. The law provides that a monthly tenant must receive at least a one month's notice from his or her landlord. In the case of a yearly tenant, the landlord must provide at least six months notice to that tenant. If the landlord fails to give the tenant adequate notice period the notice may be invalid. Landlords must therefore bear this in mind when serving the notice.
Once the notice is completed the landlord or his agent must give the notice to his tenant. It is recommended that the notice is served personally on the tenant. However, if circumstances exist whereby the landlord or his agent is unable to personally serve the notice, such notice may be given by registered or ordinary post.
Where the landlord serves a valid notice on the tenant that tenant must comply with its terms. If the tenant refuses to comply, the landlord may file a claim with the Court seeking an order to have the tenant ejected from the premises. Until such order is granted the tenant will remain protected against harassment by the landlord or any of his representatives.
Natasha Rickards is an associate at Myers, Fletcher & Gordon and is a member of the firm's Litigation Department. Natasha may be contacted via email@example.com or you can visit the firm's website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
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