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Landlords' checklist
This article was written by Clare Nicolle.
Taking on bad tenants is one of the risks that every private landlord faces.Evictions are a fact of life and a steady stream of them come before the Court every year.The eviction process can be expensive and stressful for private landlords and tends to be more favourable to tenants.In an attempt to avoid the need to resort to such proceedings there are a few points that a landlord should bear in mind when taking on a new tenant.
Always take up references
Ideally these would be from a previous landlord who can attest to the tenant’s reliability when it comes to paying the rent.
Think about carrying out a credit check
A number of local businesses offer this service.This will give a good indication as to whether or not a tenant can afford to take on the property.
Ensure you have a deposit
Alarm bells should start ringing when a tenant suggests that he pay only part of this when entering into a lease.
Ensure you have a written lease
Take legal advice on the drafting of the lease itself.Without a written lease it is left to the Court to imply the terms that were in place.
Make careful consideration of the terms of the lease
The lease should include clauses relating to the deposit; the amount of rental and the date it falls due for payment (in relation to payment of rent ideally this should be by way of standing order); and details of the tenant’s and the landlord’s obligations in relation to the property.(For example, how are the rates to be apportioned?Who must deal with the repairs that fall due within the property?Consider having a Schedule of Condition prepared for the property or a cheaper option would be to take photographs)
Keep an up to date record of rent paid
This provides a useful reference should any problems arise in the future.
If a tenant falls behind in paying the rental take quick action
It is surprising how quickly arrears can accrue and how long they can take a tenant to clear.A landlord must be clear thinking in such situations and take legal advice as a matter of urgency.Once a tenant falls into arrears and therefore is in breach of the lease, a landlord should not accept any further payment of rent as this creates a new tenancy.
If all else fails and a compromise cannot be reached the last resort is to look to the Court.A landlord will need to show the Court that the tenant is in breach of the lease.If successful, the Court will order the cancellation of the lease and subsequent eviction of the tenant.The Court has discretion to order a stay of eviction in favour of the tenant.This is based upon a two stage test by which the Magistrate determines firstly, whether the tenant merits a stay or not.If the Magistrate decides that a stay is appropriate he will then need to determine how long that stay should be.At this point he will carry out a “balance of hardship” test looking at factors including whether the tenant has young children, the health of the tenant, the availability of alternative accommodation and the reason behind the application for eviction.If a stay is granted the tenant is responsible for the rental that accrues during this period.
Costs of the proceedings are always at the discretion of the Court and should an eviction be granted are likely to be awarded to the landlord; however, a landlord must bear in mind that it may be difficult to recover such costs against an impecunious tenant.
Once the eviction is granted, notice is given to the Viscount’s Department.If the tenant has any items within the property of saleable value, the landlord has a right to seize and sell these items in respect of rental arrears.Any such seizure is carried out by officers of the Viscount’s Department.
In order to recover the rental arrears by any other method the landlord will need to bring separate proceedings before the Court for an order to enforce the previous judgment by way of wage arrest.
The eviction procedure is not simple and can be drawn out.By being thorough in carrying out checks when taking on a new tenant and taking legal advice on the drafting of the lease, time and costs can be saved in the future.
THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND NOT BY WAY OF LEGAL ADVICE. PROFESSIONAL LEGAL ADVICE SHOULD BE SOUGHT BEFORE ANY ACTION IS TAKEN.