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Possession Claims for Residential Property - Landlords Guide


If you do have a property in which you already have a tenant(s) or you are considering entering into a new Tenancy Agreement what are your rights?

 

In the vast majority of circumstances anagreement that is entered into after 28 February 1997 (whether oral or in writing) is likely to be an Assured Shorthold Tenancy (AST) which is regulated by the Housing Act 1988Assured tenants are afforded protection from illegal eviction under the Protection from Eviction Act 1977.

These tenancies cannot exist for a period of less than 6 months and are generally 6 months or 12 months in duration.  During the period of that tenancy, the tenant is entitled to remain in the property and the landlord cannot recover the property unless there are breaches of the Tenancy Agreement.  The landlord is entitled to recover possession at the end of the tenancy but requires a Court Order if the tenant does not leave voluntarily. When it comes to the time when the landlord wishes to obtain possession, the landlord must know his/her rights. 

Section 21 Notice

At the end of the tenancy term, the landlord is entitled to recover the property.  However, he cannot recover the property unless the tenant provides possession voluntarily.  If the tenant doesn’t provide possession voluntarily the landlord (despite the tenancy coming to an end) cannot recover property without a Court Order.  If the tenant does leave voluntarily the landlord must be careful that there is no suggestion that the tenant has been forced from the property without their consent.  If that were to occur this could entitle the tenant to recover damages for unlawful eviction.  The landlord should be careful!

When the landlord requires recovery of the property, it is important that a Section 21 Notice is served.  You must have evidence of serving this document which is in a standard Statutorily defined form.  The form provides the tenant with 2 months notice to leave the property and it is important that the dates on the Notice are correct.  If the Notice is incorrectly drafted, it cannot be used as a ground for possession and the document will have be re-served and the 2 month period recommenced.  Care needs to be taken when completing this Notice and the timing of the Notice is important.  The Notice can be served before the end of the statutory term (to expire at the end of the tenancy) and can be served any time after the statutory term.

If the tenant does not leave voluntarily at the end of the period of their notice, the landlord needs to obtain a formal Court Order, but this is a Court Order that can be obtained, almost, as of right.  The Court has very little jurisdiction and provided the Court is satisfied that the tenancy is an Assured Shorthold Tenancy, that the Notice has been served properly, and the term has expired, then the Court will grant possession.  There is an accelerated procedure to obtain this Order.

 If you also require an Order for recovery of arrears of rent, this can be recovered as separate proceedings or alternatively, proceedings can be commenced to recover the arrears of rent and possession of the property together.  However, this process is not expedited and tends to take longer.

Once the Court has ordered possession the tenant must leave, but if they do not leave on the date of the Order, then the landlord is entitled to obtain a Bailiff’s Warrant to evict them formally.

Section 8 Proceedings

 On occasions, during the tenancy, the landlord wishes the tenant to leave.  This might be because of arrears of rent, behaviour, other breaches of the tenancy term or other factors.  In these circumstances the landlord needs to commence possession proceedings using the Section 8 procedure.

Section 8 provides a number of grounds allowing the landlord to take possession.  Some of those grounds are mandatory in which the Court must grant possession (assuming that they are satisfied that the grounds have been met).  Some grounds are discretionary where the Court may grant possession if it feel that it is the correct Order to make.

Once a Possession Order has been obtained, the same process needs to be complied with to recover the property through a Bailiff’s Warrant if the tenant does not leave on the date of the Possession Order.

It is not essential that a solicitor is instructed to obtain the Possession Order.  However, the Court process does have a number of hurdles and a number of traps that cause difficulties.  Those traps can be avoided if the services of an experienced solicitor are used.!

 

If you have any questions whatsoever please contact:-

 

Steve Wengraf, Rutherfords LLP Litigation Partner

Tel:                  01827 311411

Email:             s.wengraf@rutherfordslegal.com

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