Landlord and Tenant Action from Attwells Solicitors

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1 Landlord and Tenant Action from Attwells Solicitors A Nationwide, fast, and economical process for obtaining Possession Orders from Court against tenants who you want to leave. It s every landlord s worst nightmare. Your property has been let and you have received the first few rent payments. Everything seems to be going fine until suddenly, without notice, the payments stop. The tenants stop returning your calls and won t respond to your letters. In the meantime the mortgage payments must be made but the income that you relied upon to make them has dried up. The rent arrears are mounting and it is absolutely vital that you get a Court Order for Possession as soon as possible. However, the wheels of justice can turn slowly and, to make matters worse, if the correct procedure is not followed to the letter the Court may adjourn the claim, causing further delay or worse, your claim might be struck out which would mean having to start the process all over again. This leaflet sets out an overview of the process and also details the time frames involved. As a leading property firm, Attwells Solicitors are specialists in this type of Court application and we have developed a fast, effective, and economical solution for our clients. Our work is undertaken on the basis of a fixed fee, we operate across the whole of England and Wales and we take care of everything, from start to finish. The key benefits of this service are:- A fast and effective response Fixed and economical service Solicitors expertise To instruct today simply contact: Will Oakes: (will.oakes@attwells.com) Or Oliver-James Topping: (oj.topping@attwells.com)

2 Evicting a Tenant: The Process No residential landlord wants to go through the frustration and cost of evicting a tenant, but sometimes it seems the only route left. There are potentially four steps to be taken to recover possession: 1. Serving notice on the tenant that possession is required; 2. Filing a Claim for Possession in the County Court; 3. The Hearing for Possession; and 4. Enforcing the Order for Possession. Know where you stand Nowadays most residential short term tenancies automatically have the status of an Assured Shorthold Tenancy (ASTs). This is a modern tenancy which is designed to allow landlords to recover their properties more simply than in the past. Despite that, there are still many layers of protection given to residential tenants meaning lots of hoops to jump through to evict a difficult tenant. It is almost never legal to evict a tenant without due process, which means if they refuse to leave, a landlord must obtain a Court Order in the County Court ordering them to leave. If the tenant still refuses to go the court bailiff must be instructed to carry out the eviction. You may want to act immediately, but don t get caught out. Failing to follow an appropriate process is potentially a criminal offence and can also result in the landlord having a liability to pay compensation to the tenant, if found to be unlawfully evicted. The process always begins with a notice which will usually be one of two types.

3 Your Options to Regain Possession: STAGE 1 1 The Tenant in Breach Route (under s8 Housing Act 1988) 2 The No Fault route (under s21 of the Housing Act 1988) Under this route the landlord must prove at a Hearing before a Judge that one of the grounds for possession has been satisfied. The landlord must also prove that a notice (a s8 Notice) has been served upon the tenant setting out the grounds and offering the tenant opportunity to remedy them. The most common ground is rent arrears, but there are others such a deterioration of the property, antisocial behaviour, or breach of a particular term of the tenancy agreement. We offer a fixed fees service unless your tenant files a Defence. If the tenant raises a Defence we will assess your chances of success and give you a straightforward answer. We ll aim to minimise any additional costs and keep you fully updated with each stage of the process. If a claim is not issued within 6 months of the notice being served, it becomes invalid and a fresh notice will need to be served before proceedings can be issued. The landlord does not need to prove the tenant has done anything wrong to use this option. The landlord must serve a notice giving the tenant at least 2 months to leave (a s21 Notice ). If the tenant has not left after expiry of the notice the landlord can apply for a possession order. Alternatively, if rent arrears are not being sought, upon expiry of the notice the landlord can apply for an Accelerated Possession Order. This route removes the requirement for a hearing and the Court will make a decision based upon the evidence filed by the parties. Please contact us to discuss the checklist of legal requirements before serving a s21 Notice. Failure to comply with all requirements will mean the notice is invalid and you will need to wait for a new notice to expire. If a claim is not issued within 6 months of the notice being served, it becomes invalid and a fresh notice will need to be served before proceedings can be issued.

4 Which route is best for you? Advantages of the Tenant in Breach route; Serving a s8 Notice can draw the tenant s attention to the serious consequences of their continued actions. Service of a s8 Notice is not invalidated by not complying with the tenancy deposit requirements. However, you will need to consider the possibility of a counterclaim which would considerably reduce the amount of rent arrears. A s8 Notice can be served at any time during the tenancy. Disadvantages of the Tenant in Breach route: The decision to evict the tenant can be mandatory or discretionary. Certain grounds mean that the Court has the discretion to decide whether or not a Possession Order should be granted. For certain grounds (e.g. rent arrears) the requirements must be met on the day of the Hearing. This means that if the tenant pays enough of the rent arrears to fall below the threshold then the landlord cannot rely on that ground. The process can be quicker as the notice period is 14 days, rather than 2 months. It s often the best approach for dealing with disruptive tenants or those with significant rent arrears. The Tenant in Breach route is often the preferred route where landlords need to take action quickly.

5 Which route is best for you? Advantages of the No Fault route: You do not need to prove that the tenant has breached the terms of the tenancy. If the s21 Notice has been properly served a Possession Order must be granted. If you do not seek rent arrears you may use the accelerated possession procedure at Court. Disadvantages of the No Fault route: There are onerous requirements to comply with before even serving a s21 notice. The tenant has to be given at least two months notice. You cannot serve a notice until at least four months after the commencement of the tenancy. We will always advise on which route we think is appropriate for your circumstances and, wherever possible, we will act so as to save you time and money.

6 STAGE 2 Filing a Claim for Possession Once we have been provided with the relevant tenancy documents we can file an application for possession proceedings with the County Court. This will always be the Court closest to the property. It takes the Court between 28 to 56 days to issue the Claim, contact the tenants, and schedule a Hearing. STAGE 3 The Hearing The Order for Possession will usually require possession to be returned 14 days from the date of the Hearing. The Court has the power to vary this to 42 days if it is proved that the eviction will cause Exceptional Hardship. STAGE 4 Recovering Possession If the tenant stays in the Property past the date specified in the Order for Possession you will have to instruct a High Court or County Court Bailiff to re-enter the property and evict anyone found there. You or a representative will need to meet the Bailiff at the property to change the locks at the specified time and date. Due to the limited number of County Court Bailiffs there is usually a minimum wait time of 28 days. High Court Bailiffs can act usually within 7 to 10 days of the expiry of the Order for Possession. County Court Bailiffs charge a low fixed fee for attending whereas High Court Bailiffs charge on an hourly basis. It is important to let us know before we file your claim whether you intend to use County Court or High Court Bailiffs. Recovering your Costs Many landlords have clauses in their tenancy allowing them to recover the legal costs of possession proceedings. The Civil Procedure Rules only provide for the recovery of any Court fee and approximately (currently) for legal costs.

7 Landlord and Tenant Action: Summary of Stages STAGE 1 STAGE 2 STAGE 3 STAGE 4 Drafting and Service of appropriate notice(s) to quit 14 days or 2 months Issue of claim form and preparation for hearing days Attendance or arranging attendance at hearing 14 or 42 days for a Possession Order Instructing Court Bailiff Minimum 28 days or 7-10 days To instruct today simply contact Will Oakes or Oliver-James Topping: (will.oakes@attwells.com) (oj.topping@attwells.com)