Can the L of residential premises let on an assured shorthold commence possession proceedings during the currency of the two-month s21 notice, or must they wait until it has expired? The conventional answer is that L must wait until the notice has expired, because of Lower Street Properties [1996]. 


Under LTA 1954, T’s s25 notice (and, indeed, many other significant notices) must be served by T on the ‘competent L’. That person is defined as the person with the ‘legal estate’ (s44(1)). 


The forfeiture of a headlease means that all sub-leases will also end. But, the position of a sub-sub-T can vary. Consider these two examples: 


Why bother to have a written tenancy agreement (as opposed to an oral agreement)? The main reasons are: 


a written contract is better than an oral contract, especially if L wants to prove breach and be able to claim financial compensation;


’A tenancy under which agricultural land, exceeding two acres, is let together with the dwelling house’ cannot be an assured tenancy (Para 6, Sched 1, HA 1988). 


The Supreme Court delivered what has been described as a ‘bombshell’ in November 2010, by deciding that for possession claims brought by a public body against someone’s home, the tenant/occupier is entitled to raise a defence of ‘proportionality’ under Article 8. 


The CA has favoured a very restrictive interpretation of the Tenancy Deposit legislation, insofar it relates to L’s failure to lodge T’s deposit within the required timescale. In the court’s view, there is no penalty for protection later than 14 days – merely a penalty if there is a complete failure to protect at all. What this means, therefore, is that L can protect T’s deposit at any stage right up to the steps of the court house, and serve T with the prescribed information at that late stage, and escape the relevant penalties.

A reminder of the main types of security available (and their disadvantages):

rent deposit: T may be reluctant to tie up his capital; L may not be automatically entitled to draw on the rent deposit if T becomes insolvent (and L’s rights will depend on which insolvency regime applies); documentation can be time consuming to negotiate given that there is no industry standard, and no perfect way to structure a rent deposit;

bank guarantee and bond: these can be difficult and time consuming to negotiate; banks often impose standard terms and resist amendments; the guarantee is usually limited to between two and five years (three years is common) and may terminate if T ceases to be a customer of the bank; preconditions may be imposed on L by the bank (eg to notify the bank of T’s default); bank charges will be significant;

The LR Bankruptcy Unit has now moved from Nottingham to Plymouth (to be alongside the Land Charges department)

An assured (or assured shorthold) tenancy does not end when the s21 notice expires. It is only when the court bailiff executes an order for possession that the tenancy comes to an end, and the service of the s21 notice does not, of itself, bring the tenancy to an end. Indeed, s21 notices have no finite lifetime (ie they do not expire, or become out of date – the oldest reported case involves an s21 notice that expired six years before possession action began!).

Can an agent sign a claim form on behalf of an L? The answer to this is ‘yes’, but not for a fee (since s22 of the Solicitors Act 1974 makes it an offence for any unqualified person to prepare legal proceedings for a fee, gain or reward).

A reminder that a tenancy with a rent of up to £100,000 can be an assured (or assured shorthold) tenancy as from 1 October. This is an increase from the previous figure of £25,000.

The DCLG has given its own guidance on some of the tricky issues that arise (but these will undoubtedly be tested by the courts). In its view:

LRA 1967 allows long lessees to acquire the freehold, or to be granted a lease extension, provided they occupy a ‘house’ – which is defined as ‘any building designed or adapted for living in and reasonably so called’.

These days there is a greater emphasis on home energy conservation, and the driving down of CO2 emissions. In practical terms, many long lessees may want to introduce energy-saving measures, only to find that their leases make this impractical.

The typical long-leasehold agreement will say that the foundations, main structure, exterior and roof are the responsibility of ground L, with T being responsible only for internal repairs and decorations. But, that conventional structure creates difficulties for a T (or L) who wants to install additional loft insulation, double-glazing, or cavity wall insulation.