Once there has been a breakdown in the landlord and tenant relationship, and the landlord wants to seek possession, the default route is the instigation of formal possession proceedings. A problem that assured and assured-shorthold landlords are starting to encounter more frequently, however, is the Section 21 debarment that results from a failure to comply with the once-and-for-all obligation that is the service of the gas safety certificate before the start of the tenancy. Indeed, often there has been a failure to serve any of the prescribed documents pursuant to the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 at all. It is an unfortunate reality that many landlords have not noticed the changes to the possession regime post-2015, and are either continuing to serve non-conforming notices on post-2015 tenants, or start debarred S.21 proceedings, only to discover when they get to court or take legal advice that their actions will have no legal effect.
Upon discovering that they are so debarred, many landlords instinctively turn to Section 8 of The Housing Act 1988, which is often a more complicated route to possession. It is at this point that surrender should be considered and explored. Surrender is the process by which both landlord and tenant agree to end the tenancy, and it usually requires no court proceedings whatsoever. Due to the need for agreement, surrender will usually be a dead end in any contested possession case, in all cases where there is no explicit resistance from the tenant though, it is likely to be worth raising the option. I recently observed a case where S.21 proceedings failed when they came before a Judge due to a failure to serve any of the prescribed documents, in this case the tenant seemed to be in the motions of vacating the property and was clearly ambivalent about the continuation of the tenancy. It was a case ideally suited to surrender, neither landlord nor tenant would benefit from the service of new proceedings and the cost and stress of another court hearing and both seemed to want the tenancy to end. The problem was that the landlord-tenant relationship had broken down and there was no real contact between the parties anymore.
In this example, the landlord’s solicitor was able to reach out to the tenant and explain the process of surrender, with the aim of executing a surrender agreement via email. An offer of surrender in such circumstances to a more entrenched tenant might include an agreement whereby in return for a clean break the landlord also agrees to surrender any claim for arrears or property damage. This can be especially advantageous if the landlord judges that the landlord is impecunious, and so unlikely to pay any eventual money judgment. It is key in all situations to ensure the surrender is in writing, and that it is formally accepted by the landlord.
The short point is that, when faced with a reasonably lengthy notice period, and potentially costly possession proceedings, a negotiated clean break by way of surrender is often the better way forwards.
Becket Chambers is able to provide advice on all types of possession proceedings to legal professionals, or to the public on a direct access basis. Any enquiries should be directed to firstname.lastname@example.org.