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Residential Possession Proceedings - Assured and Assured Shorthold

What Type of Tenasncy do you have?

Most private residential tenancies which are entered into on or after 15 January 1989 are assured or assured shorthold tenancies and are governed by the Housing Act 1988 as amended. A Landlord must follow particular procedures if they want a tenant to leave a property and recover possession.

There are important dates to be aware of which are set out below! There are elephant traps for the unwary. It is very important to know when the tenancy began because, if poession proceedings are bought under the incorrect process then those proceedings are likely to fail. Both Landlords and Tenants should consider obtaining specialist legal advice.

In addition if a landlord evicts or attempts to evict a tenant other than through these processes then this is a criminal offence and can lead to a penalty or a fine and/or up to two years in prison. It may also give rise to a civil claim by the tenant for an injunction and/or damages which may be substantial as the court can award general, aggravated and exemplary damages. The landlord may also be guilty of other criminal offences such as harassment or assault for which other penalties exist.

Type of tenancy (Rent Act Tenancy, Assured Shorthold Tenancy or Assured Tenancy)

The methods a landlord is allowed to use to recover possession of a tenancy are different depending on whether a tenancy is an a (1) Rent Act Tenanacy, (2) an assured tenancy or (2) an assured shorthold tenancy (AST).
Generally a private tenancy entered into before 15 January 1989 will be a Rent Act or Secure Tenancy. There are significant protections available for the tenant in these older tenancy agreements. Generally, most private tenancies entered into on or after 28 February 1997 will be an AST, unless it is specifically agreed that it will be an assured tenancy.

If the tenancy was entered into after 15 January 1989 and before 27 February 1997, generally the tenancy will be an assured tenancy unless, before the tenancy was entered into, the landlord served a notice on the tenant under Section 20 of the Housing Act 1988 stating that the tenancy was to be an AST. Where the tenancy is for a fixed term, or periodic term, of three years or shorter, the assured tenancy or AST can be created orally. This is because, for short term tenancies of this type, there does not need to be a written agreement for the tenancy to be validly created.

Protection afforded to an assured tenancy and an AST

Both an assured tenancy and an AST are governed by the Housing Act 1988 (as amended). This provides the tenant with certain protections including the statutory continuation of the tenancy when a fixed term tenancy comes to an end and limitations concerning the grounds and method by which a landlord can lawfully terminate and recover possession of a property let under an assured tenancy or AST. If a tenant continues to occupy a property beyond the expiry of the fixed term the tenancy will not terminate.  Instead, the tenancy will become a statutory periodic assured tenancy or a statutory periodic AST (as appropriate).

Termination of an assured tenancy

A landlord can only terminate an assured tenancy by serving a notice under Section 8 of the Act. This notice is known commonly as a Section 8 Notice and/or a Notice Seeking Possession. The notice has to be in a prescribed form and must set out the grounds for possession on which the landlord is relying. The grounds on which the landlord can rely are set out in Schedule 2 of the Act and the landlord can specify more than one. Some of the grounds set out in Schedule 2 are mandatory grounds.  This means that if, at the possession hearing, the judge is satisfied that the landlord has proven the mandatory ground specified in the Section 8 Notice, the judge must make an order for possession. The remaining grounds are discretionary grounds. This means that if, at the possession hearing, even if the judge is satisfied that the landlord has proven the discretionary ground specified in the Section 8 Notice, the judge may make an order for possession only if it considers it is reasonable to do so.

Termination of an AST

The Act provides that a landlord can only terminate an AST by serving either a Section 8 Notice (as above) or by serving a Notice under Section 21 of the Act. This notice is commonly known as a Section 21 Notice. A Section 21 Notice does not have to be in a prescribed form but it does have to contain certain information required by the Act.

Termination by a Section 8 Notice

Provided that there is a clause in the tenancy agreement that allows for termination prior to the end of the fixed term, a Section 8 Notice can be served at any time during the tenancy. No date is given in the Section 8 Notice by which the tenant must leave.  The Notice merely gives a notice period before which possession proceedings cannot start.  The notice period is different depending on the grounds relied on and the ranges between immediate notice and two months notice. Once the notice period has expired, possession proceedings can be commenced.

Termination by a Section 21 Notice

A Section 21 Notice can be served at any time. The date on which possession is required must be specified in the Notice and, in all cases, at least two months' notice must be given from the date on which the Section 21 Notice is served on the tenant. If the AST is for a fixed term which has not expired at the time the Section 21 Notice is served the date of possession cannot be earlier than the end of the contractual fixed term. If the AST is a periodic tenancy the date of possession cannot be earlier than the end of a period. It also has to be at least two months after the date the Section 21 Notice is served. So, for example, if the period starts on the 1st of every month and you wish to serve a Section 21 Notice on 16th July, the earliest date that can be specified in the Section 21 Notice is 30 September.

Advantages of a Section 21 Notice over a Section 8 Notice

The termination procedure provided by Section 21 of the Act has the following advantages over the Section 8 procedure:
• the landlord does not have to rely on any of the grounds specified under Schedule 2 of the Act and does not have to give any reason as to why it wishes to terminate the tenancy;
• provided that there is a written tenancy agreement, the landlord can issue Accelerated Possession Proceedings (see below); and
• provided that the judge is satisfied that the Section 21 Notice is valid and both the Section 21 Notice and the possession proceedings have been served validly, the judge must make an order for possession.

Possession Proceedings

If the tenant fails to leave by the date specified in the Section 21 Notice or by the end of the notice period set out in the Section 8 Notice the landlord can commence possession proceedings. Two types of possession proceedings exist, Accelerated Possession Proceedings and Normal Possession Proceedings. Accelerated Possession Proceedings
 can only be used for ASTs where a Section 21 Notice has been served and there is a written tenancy agreement. If any of these criteria do not apply, Normal Possession Proceedings will have to be used. As a general rule, Accelerated Possession Proceedings are a paper exercise although a court does have the discretion to order a possession hearing in certain circumstances.

The advantage of Accelerated Possession Proceedings is that an order for possession can usually be obtained more quickly and less expensively than through Normal Possession proceedings. The order for possession will specify the possession date by which the tenant must leave the property. Usually the possession date given in the order is 14 days after the date of the order.  If the tenant can show exceptional hardship the judge has the discretion to extend the possession date by up to a maximum of 6 weeks from the date of the order. The disadvantage of Accelerated Possession Proceedings is that the Landlord cannot seek a money judgement in respect of any rent arrears or damage/repairs to the preoperty that may exist.  If the Landlord wants to seek a money judgement for the arrears, it will need to issue either a separate debt claim for the arrears or Normal Possession Proceedings.

Normal Possession Proceedings

On issuing Normal Possession Proceedings, the court will list the matter for a possession hearing. This hearing is usually listed for a date that is 6 to 8 weeks after the date on which proceedings are issued. Prior to the hearing a witness statement will need to be served updating the court as to the current position. Because of the need for a possession hearing and the additional steps that are required, it is generally slower and more costly to obtain an order for possession using Normal Possession Proceedings.

Warrant for possession

If the tenant does not leave by the date given in the order for possession (regardless of which procedure is followed), the landlord must enforce the order for possession by applying for a Warrant or Writ of Possession. A Warrant is appropriate where the order for possession is enforceable in the County Court. If the proceedings have been transferred to the High Court for enforcement (which the landlord can request in certain circumstances) then a Writ is appropriate. A Warrant is enforced by a County Court Bailiff. A Writ is enforced by a High Court Enforcement Officer. The advantage of using the Bailiff is that his services are free save for the issue fee for the Warrant, which is currently £110. The disadvantage of using the Bailiff is that it can take more time. The advantage of using a High Court Enforcement Officer is that he is likely to be able to execute a Writ within 48 hours of being instructed. The disadvantage is that you have to pay for the High Court Enforcement Officer to perform the eviction and his fees can range between £350 and £1,000 depending upon the location, the complexity of the eviction and the number of people present.

The tenant is entitled to apply to the court to suspend the execution of the Warrant or Writ.  If the court receives an application it will list the matter for a hearing, regardless of whether the court has the jurisdiction to suspend the execution of the Warrant or Writ. If the order for possession has been made as a result of a Section 21 Notice having been served or a mandatory ground for possession under a Section 8 Notice having been proven, the judge will not have the discretion to suspend the execution of the Warrant or Writ.  If the order for possession was made as a result of a discretionary ground for possession under a Section 8 Notice having been proven, the judge will be able to suspend the execution of the Warrant or Writ if he considers it reasonable to do so.

Conclusion

If you are the landlord or the tenant of a residential agreement we strongly advice you to obtain legal advice before you act. The process or obtaining (or defending) possession proceedings requires a careful navigation of the statutory provisions. If you take a wrong step - the elephant traps are waiting for you! Steve Wengraf is a Litigation Partner at Rutherfords LLP and can be contacted on s.wengraf@rutherfordslegal.com or 01827 311411

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