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Residential Possession Proceedings

View profile for Adam Waters
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More often than not, if a tenant does not leave a property voluntarily, then, to evict them lawfully the landlord will usually have to follow the following key stages to obtain possession lawfully:

  1. Serve the relevant notice(s) and await expiry of the prescribed notice period. The most common form of notices will be served pursuant to:
    • Section 21 of the Housing Act 1988, which can be used to seek possession at the end of a fixed term tenancy; or
    • Section 8 of the Housing Act 1988 if there are rent arrears.
  2. Issue a possession claim (formal Court documents). Generally, a landlord two potential routes to obtain a possession order:
    • The Accelerated Possession procedure – which can only be used where the landlord has served a S21 Notice.
    • The Standard Possession procedure – usually used in rent arrears cases
  3. Obtain a ‘possession order’ – if the claim is unopposed then this is usually quite straight forward, but the tenant will be given an opportunity to defend the claim.
  4. Apply for the warrant for possession (‘notice of eviction’) – executed by the Court bailiffs.

If a landlord excludes an occupier from a property without following the correct procedures, that landlord could be deemed to have unlawfully evicted the occupier and may face (a) civil claim by the tenant for an injunction to be let back into the property, plus damages (which could be significant) and costs; and (b) criminal prosecution. 

S8 Notice

Quite often a landlord’s reason for seeking possession of a property is that the tenant has fallen into rent arrears. In which case, the appropriate first step is to serve a detailed rent statement together with a notice pursuant to Section 8 of the Housing Act 1988. 

If there are more than two months’ arrears, the landlord will usually prepare the notices based on the following grounds:

  • Ground 8 – where there are at least two months’ arrears at the date of the Section 8 Notice and the date of the first hearing
  • Ground 10 – there are some arrears at the date of the notice and the first hearing
  • Ground 11 – the tenant has been persistently late in paying rent

Standard Possession Proceedings

If the tenant does not leave upon expiry of a Section 8 Notice, the next step in obtaining possession of the property would be to issue a possession claim at Court.

Once the Court has received the possession claim, it will normally list a short hearing of 10 minutes or so, to decide whether or not to summarily decide whether or not to make a possession order.  The Court will then send the claim documents to the Defendant and the Claimant with a notice of hearing.

If the defendant does not oppose the claim, then the landlord is likely to be awarded a possession order at that first hearing.  However, if the Defendant puts in some form of Defence, it is common for the Judge to use that hearing to make further directions for the management of the case towards a final trial.   

S21 Notice

Unfortunately, for what may seem like a straight forward matter can become quite complex as there are a number of potential pitfalls that may invalidate a Section 21 Notice, which include:

  1. A failure to provide the tenants with:
    • A valid Energy Performance Certificate
    • Gas Safety Certificates
    • The Government “How to Rent” Checklist
  2. Mishandling of any Deposit by:
    • Failing to register it with an authorised scheme
    • Failing to provide the tenant with prescribed information about the deposit and the scheme it is held with
  3. The service of a S21 Notice may be deemed to be a retaliatory eviction of the tenant has complained about disrepair at the property and in response the Landlord serves notice rather than remedy any defect
  4. The Tenant Fees Act 2019 prohibits all payments in connection with a tenancy except payments that are expressly permitted, such are rent. If the tenant is required to make a payment that is prohibited, the landlord cannot serve a valid S21 Notice unless the breach is remedied. 

An invalid Notice will make any Court claim defective and it may be struck out possibly with costs against the landlord. It is therefore important that any notice that has been you have served is valid at an early stage.

Accelerated Possession Procedure

If a tenant has not left the property after then expiry of a Section 21 Notice, the next step to lawfully evict the tenant is to issue a possession claim. 

If there is a written tenancy agreement and there is no claim for rent arrears, the landlord may wish to issue Accelerated Possession Proceedings.  The key difference between the Accelerated Possession Procedure and the Standard Possession Procedure is that there is often no need to attend a Court hearing using the Accelerated Possession Procedure, whereas the Standard Possession Procedure will almost certainly require at least one Court hearing.

Once the possession claim is received by the Court, more often than not, the Court will then send the claim to the tenants.  The tenants will usually have 14 days to respond to the claim. 

As long as the Section 21 Notice is valid, there is generally no defence to the claim.  Nevertheless, the Defendant may try to defend the claim by saying the notice is invalid for some reason. 

If the Judge is minded to grant a possession order, the normal order is for the tenant to give back possession within 14 days. However, the tenant may seek to argue that they will suffer exceptional hardship by being ordered to leave the property within that timeframe.  If the tenant is successful, the Court has discretion to extend the timeframe to vacate the property to up to 6 weeks.  

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