Possession Proceedings

If you are the landlord of a residential property and wish to recover possession for whatever reason, unless the tenant agrees to voluntarily vacate the property, you will almost certainly need to commence possession proceedings.

Recovery of rented residential property by a landlord is heavily regulated and it is important to get it right. 

Failure to recover possession with a Court Order will not only prevent you from recovering possession but may lead to a claim against you for harassment, or unlawful eviction.

Possession proceedings often involve very technical issues.  Get the right legal advice.  A phone call to Clough & Willis may save you time and expense.  It is particularly important when you are deciding what Notice needs to be served and the date upon which the tenancy can be determined.  If you get that wrong, it is likely the Court will reject your Claim.  Worse, you may not find out your Notice was invalid until the Judge looks at your application!  If it is invalid you will have to start all over again.

For those reasons, unless a landlord is experienced and knows exactly which type of possession proceedings they wish to implement, we would always recommend an initial meeting and/or review of the papers at a fixed fee of £250.  For this, we will check the tenancy agreement, ascertain whether a deposit has been taken and how it is held, consider whether the tenant is in rent arrears and advise on the prospects of recovery of rent arrears depending upon the method of possession proceedings selected, prepare and serve either a Section 21 Notice or a Section 8 Notice.

There are two types of possession proceedings

• Accelerated Possession - Section 21
• Standard Procedure - Section 8

Accelerated Possession - Section 21

In some instances you will be able to evict tenants using 'accelerated possession'.  However, you can only do this if:

• There is an assured short-hold or a statutory periodic tenancy in place
• The tenancy agreement is in writing
• You have given the tenant the required written notice (a minimum of 2 months)
• The tenant has come to the end of a fixed-term tenancy
• You are not claiming rent arrears

The principal advantages of the accelerated possession procedure are it is quicker than a normal eviction and can be dealt with without a Court hearing.  There is often no need for anyone to attend Court, as it is dealt with on paper by the Judge.  The only exception would be if your tenant asks the Court to consider deferring their leaving because of exceptional hardship.  In such cases, the Court may fix a hearing, which you can attend and challenge the proposed reason for delay. 

The Court has the discretion to allow your tenant up to six further week's occupation. It is rare this discretion will be exercised to its fullest extent.  However, a tenant who is seriously ill, or disabled and requires a specially adapted property, may be allowed additional time to leave.

The paper-work relating to both the tenancy agreement and service of the Section 21 Notice must be in good order.  It is important to understand this procedure is only designed to result in a Possession Order. 

Section 21 Notice Periods

Sometimes it is difficult to know exactly when the end of the rental period is.  This may be because the tenancy agreement provided for rent to be paid monthly, but in reality, your tenant has always paid weekly.  Another complication may be your tenant is in receipt of Housing Benefit which has its own payment schedule.  It is vital to establish the date when the rent is actually due to avoid mistakes being made as to the date by which the tenancy ends. If in any doubt whatsoever speak to me first.

Whether your tenant is in an Assured Shorthold, Periodic or Fixed Term Tenancy then you must give at least two months' notice which must expire at the end of the rental period.  Remember, this must not be before the 6 month anniversary of the Assured Shorthold Tenancy or the end of the Fixed Term Tenancy.  This means, if you miss the date for serving the Notice, your tenant may end up with nearly three months' notice of your wish to terminate their tenancy. 

Unfortunately, on occasion once the tenant realises a landlord seeks to recover possession, they may become less cooperative.  Your tenant may be angry you are trying to force them to move.  They may become less likely to pay rent, behave responsibly or observe the terms and conditions of the tenancy agreement.  A tenant who mistreats or damages your property can be distressing.  The property may have been your home or was inherited from a family member. Often the rent is required to cover mortgage and other overheads.  Failure by a tenant to pay their rent can result in considerable hardship.  It is therefore important to gain possession as quickly as possible.  Specialist legal advice will help you avoid the many procedural pitfalls. 

Regaining Possession

Assuming the Section 21 Notice was served correctly and your tenant did not vacate the property, then you as landlord will have two options available: 

• To commence proceedings using the accelerated possession procedure as confirmed above. 
• To use the standard procedure for possession as set out below

Standard Procedure - Section 8 (for the problem tenant)

The standard procedure for obtaining a possession order is via a Section 8 Notice.  Examples of where this procedure may be suitable are as follows:

• The tenant has incurred rent arrears and these arrears are ongoing
• The tenant has caused damage to your property
• The tenant's behaviour is putting you at risk of being at breach of your own obligations as a leaseholder.  (This is most likely to involve your being a leaseholder in a block of flats and accordingly having obligations to the other leaseholders within the development and which they would seek to be enforced against you by the freeholder.)

A section 8 notice allows you to claim rent arrears as well as possession of your property and notice may be given to a problem tenant at any time during the tenancy if they are in breach of the tenancy agreement.

Your claim can be based purely on the rent arrears although a Section 8 Notice must specify a date not less than two weeks from the presumed date of service of the Section 8 Notice by which the arrears must be cleared. 

If your tenant owes more than two months' rent (if payable monthly), or more than eight weeks (if payable weekly), then such rent arrears will amount to a mandatory ground for possession.  This means the Judge must make the Possession Order.  However he has the discretion to allow your tenant up to six weeks to vacate the property.  If the rent arrears have been reduced from this level by the time of the hearing the Judge will have discretion as to whether to grant the Order at all!

If the level of rent arrears requires clarification by the tenant or the judge that aspect of the claim may be adjourned to a further hearing.

If your tenant appears to have acceptable proposals to clear the arrears, it is always worth considering them.  That is something that you rather than I may be best placed to judge.  I will be able to arm you with the right information to make that decision. 

The Section 8 Notice procedure can also be used to terminate a tenancy due to your tenants behaviour if it breaches their obligations under the tenancy agreement.  Be aware not all breaches will necessarily result in a Possession Order!  This is because some breaches of the tenancy agreement may only result in a discretionary ground for possession.  It will then be up to the Judge to consider whether it is appropriate to make the Possession Order.  

The Judge will take into account the ease by which your tenant may find alternative accommodation.  A small amount of rent arrears, or seemingly inconsequential breach of an obligation in the tenancy agreement, (such as for failing to mow the lawn), may be viewed by the Judge as insufficient to grant an Order. 

Once the Possession Order has been made

The Order once granted, whether under the Section 21 or Section 8 Notice procedure, will confirm a date by which your tenant must leave the property. 

Should they fail to do so, you will need to apply to the Court for a Warrant of Possession whereby the Court Bailiff will enforce the Order.  Frustratingly, it can take several weeks for this to take place. 

If a Judgment has been made against your tenant in respect of the rent arrears, you should try to enforce that Judgment whilst they are still in the property.  Once the tenant has left, it can be difficult to enforce a Judgment simply because you are unlikely to have their forwarding address! It is important that a landlord should know as much information as possible about their tenant, to include, full name, date of birth, previous address, a relative's address and where they work.  This can often help in tracking them down and recovering the rent arrears.