Landlord Guide: Handling Tenant Imprisonment in ASTs

As a landlord managing an Assured Shorthold Tenancy (AST), facing a situation where a tenant is imprisoned can be challenging and complex. Understanding the tenant's rights and your legal avenues for obtaining possession is critical to navigating this situation effectively.

Tenant Rights During Imprisonment

When a tenant is sentenced to imprisonment, the dwelling remains their only or principal home (prison is not classed as a home), and they retain specific rights concerning their tenancy. Crucially, the tenancy continues if the tenant intends to return to the property on release. This intention can be demonstrated through actions like:

• Continued Rent Payment: Continuing to pay rent is fundamental for tenants to maintain their status.
• Notifying the Landlord: Tenants should write to landlords about their imprisonment and intention to return. This should include the expected date of return.
• Property Maintenance: Having a friend, family member, or lodger care for the property can further demonstrate the tenant's intention to return (subject to tenancy terms on subletting or guests).

Even if none of the above is being done, it does not necessarily mean there is no intention to return. A landlord should assume they will be returning unless otherwise notified in writing.

If there is evidence of no intention to return (for example, the property has been emptied and keys left at the property), it may be possible to assume abandonment.

Landlord's Possession Rights and Procedures

Landlords have several legal routes to regain possession of their property under these circumstances.

Section 21 Notices

Issuing a Section 21 notice is the most straightforward method for landlords to regain possession, allowing them to do so without stating a reason, provided all conditions for issuing such notices are met.

Dealing with Rent Arrears

If the tenant fails to pay rent during imprisonment, landlords can initiate a court action for possession based on rent arrears. This involves serving a Section 8 notice, citing specific grounds such as grounds 8, 10, and 11. The notice must be at least 18 days long (including four days for delivery).

Ground 7A: Mandatory Ground for Possession

Introduced by the Anti-social Behaviour, Crime and Policing Act 2014, Ground 7A provides a mandatory ground for possession if proven. This ground applies under several conditions related to serious offences, breaches of injunctions, criminal behaviour orders, closure orders, and noise nuisance convictions. Landlords must serve a Section 8 notice, including Ground 7A, and the notice period varies depending on the tenancy's fixed or periodic nature.

Conditions for Ground 7A

1. Conviction of a serious offence by the tenant or associated persons in various contexts related to the property or landlord.
2. Breach of an injunction under the Act connected to nuisance or annoyance in the property's locality.
3. Conviction for breaching a criminal behaviour order with similar locality-related restrictions.
4. The property is subject to a closure order for more than 48 hours.
5. Conviction related to statutory noise nuisance from the property.

Time Constraints for Serving Notice

• For conditions 1, 3, or 5: Within 12 months of the conviction or the final determination of any appeal.
• For condition 2: Within 12 months from the day of the court finding the breach or the final determination of any appeal.
• For condition 4: Within three months of the closure order or the final determination of any appeal.

Practical Considerations

While Ground 7A offers a path for possession, it has severe constraints and restrictive timelines. In many cases, especially when the tenancy becomes periodic, a Section 21 notice might provide a quicker, more straightforward path to possession.

Please see this page for more information on ground 7A.

Serving Notices

As long as the tenancy agreement contains a term about how documents are sufficiently served on the tenant, that process can be followed. For example, most tenancy agreements contain a term that notices may be delivered to the tenancy address, which will be sufficient for service. Personal delivery at the prison may be required if no such term exists.

Conclusion

For landlords managing ASTs in England, it is crucial to balance the tenant's rights with your need to manage your property effectively in cases where a tenant is imprisoned. Understanding your rights and the appropriate legal processes is essential. Always consider seeking advice to navigate this complex area of property law effectively.

More information can also be found on Shelter's website.