Breach of Tenancy Agreement

What is a breach of tenancy agreement?

The tenancy agreement you sign at the start of a residential tenancy outlines the conditions that both parties are expected to follow during the lease period.

A condition can be an agreement to positively act, such as an obligation to pay rent on time or keep the property clean and tidy. Or it can be an agreement to refrain from acting, such as not subletting the property or not causing a nuisance to neighbours.

If either the landlord or the tenant breaches the terms of the tenancy agreement, you can take legal action against them in Court.

Express and implied conditions in assured short-hold tenancy agreements

Most residential leases in the UK are assured short-hold tenancy agreements (ASTs). This type of tenancy has a fixed term (usually six or twelve months) and then continues until either the landlord or tenant serves the correct notice to end the tenancy.

Assured short-hold tenancy agreements contain two types of conditions:

Express conditions

These are explicitly stated in the tenancy agreement and both parties have agreed to them. There may be clauses around decorations, keeping pets, what the property can and cannot be used for, landlord’s responsibility for maintaining communal areas, and so on.

Besides the conditions that feature in all ASTs, such as the length of the tenancy, monthly rent, and amount of security deposit, there is no standard AST template. It is really up to the landlord how much detail they want to include or exclude.

Implied conditions

What is written in the assured short-hold tenancy agreement is not the whole story. Some conditions are implied by law, and you will be required to follow them even if they are not mentioned in the tenancy agreement.

Most implied conditions fall on the landlord and include the following obligations:

• To carry out property repairs in a timely manner.
• To maintain water, gas, electricity, heating and sanitation services.
• To give at least 24 hours’ notice of access.
• To place the tenant’s security deposit in Tenancy Deposit Protection Scheme within 30 working days of the tenancy starting.
• To give the tenant a gas safety certificate, energy performance certificate and valid ‘How to Rent’ guide at the beginning of the tenancy.
• Not to harass or unlawfully evict the tenant.

If you have been accused of breaching your lease, or you believe the other party is doing so, the first step is to consider the terms of the tenancy agreement and any implied conditions that apply. Often, there are questions of interpretation involved with tenancy. Our specialist landlord and tenant solicitors can ascertain whether the other party’s actions, or lack thereof, constitute a breach of the tenancy agreement and advise you on your legal options.

What about other types of tenancy agreements?

Other types of tenancy agreements are not as common as ASTs. They include common law tenancies, which is the type of tenancy you have if your rent exceeds £100,000 or where there is a resident landlord, and assured tenancies, which were the default tenancy between 1989 and 1997. Assured tenancies give the tenant greater protection from eviction than an assured short-hold tenant.

Different conditions and statutory obligations apply to these types of tenancies. Our landlord and tenant solicitors can help you determine what type of tenancy you have, whether the lease has been breached, and if so, what your options are.

Can I sue for a breach of lease?

When one party breaches the terms of a tenancy agreement, it is up to the other party to take action.

What that looks like depends on the nature of the breach and which party is at fault. A simple conversation can often resolve minor disputes—our solicitors can open those conversations on your behalf or send a formal letter to the other side, giving them a reasonable time to respond and take action. This is often enough to bring everyone to the table to find a workable solution.

If the breach is substantial, or if the other party refuses to cooperate, then you may be able to take other forms of legal action. This includes:

• Starting the eviction process (for landlords).
• Using your rent to pay for repairs (for tenants). This is a risky process and you must follow a specific procedure if you are thinking about doing this, otherwise you put yourself at risk of eviction.
• Submitting a claim to the First-tier Tribunal (Property Chamber) or to a County Court to force the other party to comply with the tenancy agreement. This may take the form of an injunction (to stop a breach of the lease) or an order for specific performance (to compel the other party to carry out their obligations).
• Claiming compensation for any losses incurred. This might include the cost of hiring a contractor to fix a problem that the landlord should have fixed, or medical treatment if the property was in such a state that it caused injury.

In cases involving allegations of breach of tenancy agreement, it is essential to take legal advice before you do anything else. Landlords in particular need to take care not to implicitly waive their right to enforce lease covenants, or attempt any sort of “DIY” eviction which is a criminal offence.

Our expert landlord and tenant disputes solicitors team can assess which remedy would achieve the best outcome for you and how best to proceed.

Will I be evicted for breach of a tenancy agreement?

Currently, there are two ways in which a landlord can evict a tenant. These are to;

• Issue a Section 21 notice for “no fault” eviction after the fixed term of an assured shorthold tenancy has ended.
• Issue a Section 8 notice for eviction at any time because the tenant has broken their tenancy agreement or has rent arrears.

As a tenant, you might be able to defend a section 8 notice if you can show that you did not breach the tenancy agreement, or by explaining to the Court what you have done to put things right.

You have fewer options for challenging a section 21 eviction. However, you may be able to do so if the landlord makes a mistake in procedure or you believe the eviction is retaliatory. For example, a landlord is not permitted to serve a section 21 notice because you made a legitimate complaint about the condition of the property.

The right to issue a section 21 notice may soon be abolished entirely, under new government plans. Instead, the circumstances under which a Section 8 notice to quit can be issued will be expanded.

As a tenant, it is important to get advice at a very early stage if you receive any type of eviction notice. Our solicitors have extensive experience in defending possession claims and can advise on your next steps.

Can I end a problem tenancy early?

Break clauses are not very common in residential leases. However, if you have one, you can use it to end a problem tenancy without having to wait for the end of the fixed term or start possession proceedings.

The wording of the break clause will tell you when it can be used, how much notice you have to give, and whether there are any conditions that have to be met. The most common condition is payment of rent.

To successfully exercise a break clause, it’s vital to strictly follow its terms. Missing a deadline by even one day can invalidate any notice you have served, leaving you with the same problem tenancy that you had before.

If you don’t have a break clause, the options for early termination are limited. One option is for both parties to mutually agree to end the tenancy—you can include compensation or other terms in this agreement. Our landlord and tenant disputes lawyers can help you find a solution that works for both parties.

Why use Osbornes tenancy agreements solicitors?

Our leading team of property litigation lawyers is able to assist private rental and social housing landlords and tenants on the full range of tenancy disputes, including allegations of breach of tenancy.

We are consistently rated in the top tier by independent legal guides, in recognition of our high standards of legal advice and client care. Since breach of tenancy agreement disputes can be complex and time-sensitive, we are pleased to offer an initial no-obligation call to ascertain if we can assist.

To speak with one of our expert property litigation solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811