Guide To Recovering Possession Of Residential Property

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1 Guide To Recovering Possession Of Residential Property This Guide provides an overview of how a landlord can obtain possession of a rented residential property. It describes the type of notice to serve on a tenant, how to make a claim for possession and how to enforce a possession order. Giving Notice To A Tenant Which Notice Should You Serve On The Tenant? The first step in taking possession of your property is to give formal notice to the tenant that you require them to leave. There are two possible routes, known as the Section 8 Notice and Section 21 Notice procedures. Which notice you are required to serve will depend on different factors such as whether the fixed term of the tenancy agreement is still running and whether or not the tenant is in breach of any terms of the tenancy agreement. Use the Section 8 Notice procedure if the tenant is in breach of the tenancy agreement, e.g. they have not paid the rent. This procedure can be used during a fixed tenancy term. Use the Section 21 Notice procedure if the tenant is not in breach of the tenancy agreement but for some other reason you require them to vacate the property. Note that it is not possible to ask the tenant to leave before the end of any fixed term with this procedure. Section 8 Notice If your tenant has breached the terms of the tenancy agreement, under Section 8, Housing Act 1988, there are various grounds on which you can seek possession of the property, whether during any fixed term of the tenancy or not. This guide is for reference purposes only, and does not provide advice for any particular set of circumstances. Feakes & Co, Riverside Court, Beaufort Park, Chepstow NP16 5UH ( ), Authorised and regulated by the Solicitors Regulation Authority (SRA) number

2 The most commonly relied on ground of Section 8 is where the rent is in arrears of at least two months. The Section 8 Notice requires the tenant to make good their breach within 2 weeks (by clearing the arrears) and warns that failure to do so may result in possession proceedings being issued at court. Section 21 Notice You can serve a Section 21 Notice if you wish your tenant to leave the property but there is not necessarily any fault on the tenant s part. Section 21, Housing Act 1988, states that you must give your tenant at least two months notice to leave the property. The Notice should specify the expiry date of the period of notice, i.e. the date on which the tenant must leave the property. If you serve the Notice within a fixed term of the tenancy agreement, the expiry date of the Notice must be after the end of the fixed term. Once the fixed term of the tenancy expires, the tenancy is deemed to be a statutory periodic tenancy, and you must give at least two months notice to leave. The expiry date is the last day of the rental period. One important point to note is that if the tenant paid a deposit, and you did not register it with a tenancy deposit scheme, then you may not be able to serve a Section 21 Notice. The same applies if the relevant prescribed information was not given to the tenant. For properties in England (not Wales): if the tenancy agreement started on or after 1 October 2015, then the expiry date on the Section 21 Notice does not need to be the last day of the rental period and can simply be two months from the date the Notice is served. Preparing And Serving The Notice It is very important that the Notice is in the correct form and is entirely accurate. The parties details need to be stated correctly and the date for possession must be calculated accurately. If not, the court might reject any possession claim based on it. 2

3 The Notice must be served on the tenant at the property. This should be done in person or by first class post. 3

4 Making A Claim For Possession At Court If the tenant does not vacate the property after service of the Notice, you will need to issue a claim at court. Accelerated Procedure Where you have served a Section 21 Notice and are not claiming any rent arrears, you can use the Accelerated Procedure. This involves a judge making a Possession Order on paper without holding a Court hearing. This is a quick and cost-effective way of getting a possession order. Standard Procedure You cannot use the Accelerated Procedure where you are claiming for rent arrears. In these circumstances, on receipt of your claim the court will set a date for a possession hearing at court. Preparing And Sending Your Possession Claim To start the court proceedings for possession, send a claim form to the court with the court fee. For a claim under the Accelerated Procedure, use claim form N5B. For a standard claim, use claim form N5 and a Particulars of Claim (form N119). The claim form should set out the claim clearly and concisely, with all details stated accurately. The tenant should file a Defence at court. If they fail to do so you can ask the court to make a possession order without a hearing. If they do file a defence, the court is likely to set a date for a possession hearing. Possession Hearing The court will usually allow you as landlord to file a witness statement, explaining the circumstances and why you wish to take possession of the property. 4

5 At the hearing, the judge will consider the paperwork and check if the Notice was properly served. If the Judge is satisfied that you have made out your claim correctly, they will make a Possession Order. The usual order is that the tenant vacates the property within 14 days. Eviction Once the Court makes a Possession Order, the tenant should vacate the property. In practice they may not do so, for example if they wish to be rehoused by the local authority. In those circumstances, you will need to take steps to evict the tenant. You can instruct either a county court bailiff or a High Court Enforcement Officer. County Court Bailiff To instruct the bailiff, make a Request for a Warrant of Possession from the county court. This is done by completing and returning the Request to Court, together with the court fee. The bailiff will contact you and confirm their attendance date at the property. This is usually six to eight weeks after receipt of the request. The bailiffs will then attend the property on the specified date and evict the tenant. High Court Enforcement Officer A HCEO is not a court official, but works for a private company. A HCEO can carry out an eviction in around two to three weeks, which is faster than the county court. Secure Your Property To ensure your property is secure after the tenant has gone, you should change the locks. 5

6 6

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