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We are pleased to report a successful outcome in defending a possession claim where the claimant, a letting agent, ultimately discontinued their case due to several technical issues. As a result, the case ended in our client’s favour, with a costs order made against the claimant. This case highlights the importance of ensuring compliance with property regulations at every stage of the tenancy process, from start to finish.
Who is the Landlord?
A common misconception is that the letting agent can be landlord. However, a landlord is the individual or entity that owns the property or land.
Under Section 45 of the Housing Act 1988, a landlord is defined as:
"Any person from time to time deriving title under the original landlord, and also includes, in relation to a dwelling-house, any person other than a tenant who is, or but for the existence of an assured tenancy would be, entitled to possession of the dwelling-house."
In simple terms, if you do not have an interest in the property, you are not entitled to possession.
This distinction became a critical issue in the defence of the possession claim. Here are several key areas where this can cause an issue:
1. Tenancy Agreement
A tenancy agreement must be entered into by the actual landlord. If a third party, such as a letting agent, enters into the agreement in their own name, the tenancy may be unenforceable. This is because the third party has no right to grant possession of the property. Without a properly executed tenancy agreement, there may be no clear terms governing the relationship between the landlord and tenant, leaving the tenant with only basic statutory protections that could be inadequate.
2. Deposit Protection
If the deposit protection information is provided by anyone other than the landlord, or if the details are inaccurate, it can result in a breach of regulations. The law requires the landlord to supply specific prescribed information about the deposit. Failure to do so can trigger an obligation to return the full deposit and potentially pay damages of up to three times its amount.
3. Invalid Notices
Any notices purportedly served and signed by the landlord may be invalid if they are not properly executed. This includes notices for rent increases and possession proceedings. If such notices are not valid, they could undermine the legal standing for an increased rent or possession claim.
4. Possession Claims
A possession claim lodged by anyone other than the landlord is likely to fail. Only a person with the legal entitlement to possession of a property can lawfully bring a claim for possession of it.
Conclusion
Given the potential issues raised in this case, it is crucial for landlords and tenants alike to ensure that all legal requirements are met throughout the tenancy. Whether you are entering into a tenancy agreement, dealing with deposit protection, or responding to notices or possession claims, seeking professional advice can help avoid costly mistakes.
If you have any concerns or questions regarding your tenancy or property rights, please don’t hesitate to contact us. We are here to assist you with expert legal advice and support.
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