Guidance For use in England and Wales only Form N5B - Claim for possession of property (accelerated procedure) Contents Introduction Before you begin Types of tenancy agreements Tenancies protected by a deposit Correctly serving a Section 21 notice Completing the document Which forms and documents do I need to start proceedings? Statement of truth Issuing a claim at court Summary of the procedure after issuing the claim Orders for costs Time frame Introduction Use the N5B claim form when applying to court for an order to get possession of a property let under an assured shorthold tenancy agreement (see Types of tenancy agreements below) after serving a notice under section 21 of the Housing Act 1988. This procedure can't be used to recover possession on any grounds (other than section 21) such as rent arrears or to make a money claim against the tenants. This document is only designed to be used for tenancies agreed on or after 28 February 1997. This form is only suitable for proceedings in the County Court. Once complete the form must be sent to the relevant County Court office with the appropriate court fee to be issued. Your claim will refer to various other relevant documents (e.g. the tenancy agreement). You will need to include copies of these with your claim. This document will create relevant cover sheets for you to attach these to. 1
If your circumstances require it (see Extra requirements), this document will also create a witness statement confirming that a Gas Safety Certificate, Energy Performance Certificate and the 'How to rent: the checklist for renting in England' document have all been given to the tenant(s). Please note: a landlord cannot evict a tenant from a residential property without a court order. Doing so without a court order is a criminal offence under the Protection from Eviction Act 1977 and the landlord could be fined, sent to prison, or be subject to a civil claim for damages. Before you begin This form should be completed only if the following circumstances apply: Your claim is only for possession and doesn't include any other claim (e.g. rent arrears). Your current tenancy is in writing, or, it follows earlier tenancy agreements where one or more of those were in writing. If the current tenancy agreement follows on from an earlier tenancy agreement, the earlier agreement must also have been an assured shorthold tenancy AND the parties (i.e. the landlords and tenants) and premises let must have been the same You have served a valid notice on the tenants in compliance with section 21 of the Housing Act 1988 (a section 21 notice). (See below under 'correctly serving a section 21 notice'). Stamp duty has been paid if the first or latest tenancy agreement is dated on or before 1st December 2003. If stamp duty has not been paid then the court may not accept the tenancy agreements as evidence at court and could strike out your claim or put it on hold until the stamp duty has been paid. Tenancy agreements commencing after this date do not require stamp duty to be paid. If the property is a house in multiple occupation (HMO) or is located in an area designated for selective licensing by the local authority you must have the appropriate licence or be in the process of applying for it. See Houses in Multiple Occupancy (HMO) and Selective Licensing below. If you received a deposit you must have paid it into a government-approved tenancy deposit scheme. See below under the heading Tenancies protected by a deposit for more information. If the property is in England and the tenancy is a contractual tenancy that started on or after 1 October 2015 or is a statutory periodic tenancy with a previous fixed term starting on or after 1 October 2015 see the additional requirements below (Extra requirements). The tenancy agreements were made on or after 28 February 1997 and none of the tenants are employed in agriculture, whether full time or under a permit. If this is not the case the agricultural worker condition (defined in schedule 3 of the Housing Act 1988) may apply and legal advice should be taken. If the agricultural worker condition applies, this form should not be used. The tenants have been served a notice under section 48 of the Landlord and Tenant Act 1987 giving an address in England & Wales where notices may be served. If the tenancy agreements provide such an address for the landlord then this requirement will be fulfilled. Types of tenancy agreements Any residential tenancy entered into after 15 January 1989 will be an assured tenancy, unless it falls within a certain set of categories. Most assured tenancy agreements will be what are known as 'assured shorthold tenancy agreements' (commonly referred to as ASTs), unless certain conditions apply. 2
Please note: This claim form may only be used where the tenancy is an assured tenancy that is also an AST. In other words, you first need to establish whether the tenancy is an assured tenancy. If it is you then need to work out whether it is an AST. Below are notes setting out how to proceed through each step. Is the tenancy an assured tenancy? Any residential tenancy for premises let as a separate dwelling entered into on or after 15 January 1989 will be an assured tenancy, as long as: the tenant or each of the joint tenants is an individual, they (or one of them) occupy the premises as their main or only home, and the tenancy does not fall within one of the exceptions. Exceptions The exceptions where a tenancy will not be an assured tenancy are: High value properties (those with an annual rent of more than 100,000 in England or Wales) Tenancies at a low rent (tenancies for no rent, or those where the annual rent is less than 250 or, in Greater London, 1,000) Business tenancies Tenancies of premises that are licensed for the supply of alcohol for consumption on the premises Tenancies where agricultural land of more than two acres is let with the dwelling-house Tenancies of agricultural holdings or farm business tenancies Lettings to students by educational institutions and other specified persons Holiday lettings Lettings by resident landlords (A landlord is a resident landlord if the tenant shares the same flat or house with them, or if the landlord and tenant each have a flat in a building that has been converted into flats. However, if the landlord and the tenant have separate flats in a purpose-built block of flats, the landlord is not resident.) Crown tenancies, i.e. tenancies where the Crown is the landlord Lettings by specified public bodies, including local authorities 3
Certain lettings of social housing to tenants who have been evicted on anti-social behaviour or nuisance grounds, lettings to asylum seekers and displaced persons. Is the tenancy an AST? Between 15 January 1989 and 28 February 1997 an assured tenancy was not an assured shorthold tenancy unless this was stated in the tenancy agreement or in a notice served by the landlord. This position was reversed for tenancies made on or after 28 February 1997. These are automatically assured shorthold tenancy agreements unless one of the conditions listed below applies: Before the tenancy started, the landlord served a notice on the tenant stating that the tenancy would not be an assured shorthold tenancy After the tenancy began, the landlord served a notice on the tenant stating that the tenancy would no longer be an assured shorthold tenancy The tenancy agreement states that the tenancy is not an assured shorthold tenancy The tenancy arose by succession (e.g. where the current tenant became the tenant under the will of the original tenant) The tenancy became an assured tenancy on ceasing to be a secure tenancy The tenancy arose when a fixed term assured tenancy rolled over into an assured periodic tenancy The tenancy arose by virtue of Schedule 10 to the Local Government and Housing Act 1989 (security of tenure on ending of long residential tenancies) The tenant is an agricultural worker The tenancy is a new tenancy granted to a person who immediately before the tenancy was an assured tenant (but not an assured shorthold tenant) of the same landlord. This exception provided some protection for tenants who had existing assured tenancies when ASTs were introduced. It prevents the landlord of a preexisting assured tenancy simply turning it into an AST by ending the old assured tenancy and having the same tenant enter into an AST agreement instead. The exception does not apply if prior to the new tenancy, the tenant had himself served a notice on the landlord stating it was to be an assured shorthold tenancy. This document is only suitable for assured tenancies which are also assured shorthold tenancies. Contractual assured tenancies and statutory periodic tenancies The tenancy may be a contractual tenancy or a statutory periodic tenancy. Contractual tenancies A tenancy will usually arise as a result of an agreement between the landlord and tenant - the tenancy agreement. The agreement doesn't have to be in writing and may be an oral agreement. A tenancy which is 4
created by an agreement is called a contractual tenancy. A contractual tenancy may be a fixed-term tenancy, a periodic tenancy or a combination of a fixed term followed by a periodic tenancy. A tenancy is for a fixed term if it is known from the start that it will end on a specific, fixed date. For example, a tenancy for one year from 1 January is for a fixed term because it is known that it will end on 31 December of that year. A tenancy that is not for a fixed term is called a periodic tenancy. A periodic tenancy continues until it is brought to an end by the landlord or the tenant. The tenancy is described as periodic because each rent payment continues the tenancy for the period until the next rent payment date. So, if rent is paid monthly, the tenancy continues from month to month and is said to be a monthly periodic tenancy. A periodic tenancy created by agreement is a contractual periodic tenancy. It would arise if you agreed at the outset only to a periodic tenancy. If you agreed at the outset to a fixed term followed by a periodic tenancy, this periodic tenancy would also be a contractual one. Statutory periodic tenancies Where a fixed-term assured tenancy ends and the landlord doesn't apply to the courts to remove the tenant or the tenant hasn't left the premises or otherwise ended the tenancy, then the tenancy will automatically be converted into a statutory periodic tenancy, provided that: 1. The landlord and tenant remain the same after the expiry of the fixed term of the tenancy and 2. The premises let are the same, or substantially the same, after the expiry of the fixed term of the tenancy. This means that minor changes to the premises will not affect the ability of the landlord to apply for accelerated possession. For instance, the addition of a conservatory or garden decking. However, larger changes which change the character of the premises, such as extensive subdivision of the property, may mean that the accelerated possession route will not be available Where a fixed-term tenancy has been converted into a statutory periodic tenancy, the type of tenancy will remain the same. In other words a fixed-term AST which has been converted into a statutory periodic tenancy will also be an AST. Tenancies protected by a deposit Tenancy deposit protection (TDP) schemes guarantee that tenants will get their deposits back at the end of the tenancy if they meet the terms of the tenancy agreement and do not damage the property. Landlords 5
must protect their tenants' deposits using a TDP scheme if they have let the property on an assured shorthold tenancy (AST). For deposits received after 6 April 2012, the landlord must within 30 days after receipt of the deposit register the deposit, comply with the requirements of the TDP scheme, and give the tenants (and any person who has paid the deposit on behalf of the tenants, such as a parent or employer) the required information. The time-frame was 14 days for deposits received between 6 April 2007 and 5 April 2012. There doesn't seem to be a time limit for deposits taken before 6 April 2007 where the current tenancy is a contractual tenancy that started before that date. Where the current tenancy is a contractual tenancy that follows one or more previous contractual tenancies (for the same property between the same parties), and a deposit was taken and properly registered in relation to one of the previous tenancies, it doesn't need to be re-registered. If the prescribed information was given to the tenant (and any person providing the deposit for them) within the relevant time, it only has to be provided again if it has changed since it was first given. When a tenancy rolls over into a statutory periodic tenancy (whether the original tenancy started before or after 6 April 2007), the statutory periodic tenancy is a new tenancy. The general rule is that any deposit held in relation to that new tenancy, even if it was actually paid in relation to the original tenancy, must be protected by registration. Special rules apply in the following cases: 1. Where the original tenancy started on or after 6 April 2007 and the deposit was correctly registered at the start of that tenancy, there is no need to re-register the deposit at the start of the statutory periodic tenancy. If the deposit wasn't registered at the start of the original tenancy, it must be registered at the start of the statutory periodic tenancy, although this won't cure the breach with respect to the original tenancy. 2. Where the original tenancy started and a deposit was taken before 6 April 2007, and the tenancy rolled over into a statutory periodic tenancy after this date, but before 26 March 2015, the deposit should have been protected within 30 days of the tenancy rolling over (14 days if it rolled over between 6 April 07 and 5 April 2012). If the deposit had not been protected in this time period, the landlord will nonetheless be treated as having satisfied their obligations if the deposit was registered within a 90-day grace period between 26 March 2015 and 23 June 2015. 3. Where the original tenancy started before 6 April 2007, and rolled over into a statutory periodic tenancy before 6 April 2007 there doesn't seem to be a time limit for registering deposits. Otherwise, the general rule applies. A landlord who hasn't protected the deposit is not entitled to serve a section 21 notice unless he has returned the deposit to the tenant first. Landlords should make sure they get the following details from their TDP scheme provider: 6
name and contact details of the scheme contact details for the scheme's dispute resolution service how to apply for the deposit's release what to do if the landlord or tenant can't be contacted at the end of the tenancy how the deposit is protected Within 30 days of receiving their tenants' deposits (14 days if the tenancy started before 6 April 2012), landlords must give this information to their tenants (and, if applicable, to anyone who has paid the deposit on behalf of the tenants). If they have not provided this information in this time frame, they must do so, at the latest, before serving the section 21 notice. They must also give them: the address of the rented property and the amount of deposit paid the landlord's or letting agency's name and contact details the name and contact details of any third party that has paid the deposit items or services covered by the deposit the circumstances under which the landlord will be able to retain some or all of the deposit what to do if there is a dispute over how much deposit should be returned A landlord can't serve a valid section 21 notice on their tenants in the following situations: The deposit is not held in a TDP scheme. However, a section 21 notice can be served if the deposit has been returned to the tenant (either in full or with agreed deductions), or after the determination, settlement or withdrawal of any claim by the tenant. The above information relating to the deposit and its registration with a TDP (i.e. the 'prescribed information') has not been given to the tenant and any person who has paid the deposit for the tenant. However, a section 21 notice can be served after this information has been provided, even if it was provided late. The tenant or someone on their behalf has provided a non-monetary deposit. However, a section 21 notice can be served once the deposit is returned to the person who provided it. An invalid section 21 notice remains invalid even after any action is taken to remedy the problem and a new notice must then be served. Houses in Multiple Occupancy (HMO) Properties rented out to three or more unrelated tenants may be classed as a 'House in Multiple Occupation' (HMO). The way in which HMOs are defined is complex, and you should contact your local authority if you are unsure. If your property is an HMO, a licence is needed. Failure to apply for a licence is a criminal offence and can result in heavy fines. You are not entitled to serve a section 21 notice unless you have obtained a licence or you have applied for one and your application is being processed. Licences can be obtained from the local authority in which the property is located. In addition to the licensing requirement, there are also several other landlord obligations in relation to HMOs, some of which are noted below. 7
Selective Licensing There are certain Local Authorities in England which have designated Selective Licensing Areas. This means that all landlords in those areas letting residential premises must be licensed to do so by the relevant Council. You should check with your Council to see if your premises fall within such an area. Failure to apply for a licence is a criminal offence and can result in heavy fines. You are not entitled to serve a section 21 notice unless you have obtained a licence or you have applied for one and your application is being processed. Correctly serving a Section 21 notice For a section 21 notice to be valid it should not have been served before the tenancy commences. Where the tenancy is a fixed-term tenancy, the notice cannot take effect before the end of the term. If the term is less than 6 months, the order for possession may be applied for, but will only take effect after 6 months have elapsed from the start of the tenancy. The tenants must be given the minimum amount of notice required for that tenancy. They must be given a minimum period of 2 clear months' notice from the date the notice is served on them to the date possession is required. For example, if a notice is served on May 26, 2 clear months will expire on July 26. The rules below under Methods & dates of service of notices are also used to work out the actual day of service of the section 21 notice. However, a longer period of notice may be required for a contractual periodic tenancy. The length of notice ('notice period') for a contractual periodic tenancy depends on whether the property is in England or Wales, and when the tenancy started. Contractual periodic tenancies in England starting before 1 October 2015 and all contractual periodic tenancies in Wales (whenever they started) You must give at least: 2 months' notice for weekly, fortnightly and monthly tenancies A full period's notice for quarterly and 6-monthly tenancies 6 months' notice for yearly tenancies. A full period's notice for quarterly and 6-monthly tenancies means a notice that includes the first and last day of a tenancy period (for example, for a quarter 24 March - 23 June, notice must be given on or before 24 March and expire on or after 23 June; giving notice on 1 April and ending 3 months later wouldn't cover a full tenancy period). The notice period must end on the last day of a tenancy period. For example: 8
Monthly tenancy where the rent is payable in advance on the 6th of each month and a section 21 notice is served on 26 March: although 2 months will have passed on 26 May, the notice must expire on 5 June to coincide with the end of a tenancy period Quarterly tenancy with quarters starting on 25 March, 24 June, 29 September and 25 December: you must give at least a full quarter's notice and the notice must expire on the last day of a quarter. So, for example, if you give notice on 20 February, the earliest the notice can expire is 23 June, giving a full quarter's notice (25 March-23 June) 6-monthly tenancy with periods starting on 1 January and 1 July: you must give at least a full 6-month period of notice and the notice must expire on the last day of a 6-month period. So, for example, if you give notice on 20 February, the earliest the notice can expire is 31 December, giving a full 6-month period of notice (1 July-31 December) Yearly tenancy, starting on 1 January: you only need to give at least 6 months' notice and the notice must expire at the end of a year. So, for example, if you give notice on 20 February, the earliest the notice can expire is 31 December, giving more than 6 months' notice and expiring at the end of the year. Contractual periodic tenancies in England starting on or after 1 October 2015 The requirement for a section 21 notice for a contractual periodic tenancy to end on the last day of a tenancy period doesn't apply. The notice can end on the last day but can also end on any day after the last day of the tenancy period. However a complete period's notice must still be given. For a monthly (or more frequent) tenancy, you only need to give 2 months' notice as this will be longer than one full rental period. If the section 21 notice ends in the middle of a rental month, you should apportion the rent and repay to the tenant the rent paid in advance for the period after they've left the property. For a quarterly or six-monthly tenancy, the notice must cover a full period of the tenancy, but can end on or after the last day of that period. For example, for a quarterly tenancy, with quarters starting on 25 March, 24 June, 29 September and 25 December, any notice given, for example, after 25 December and before 25 March must expire on or after 23 June (as it doesn't have to expire only on the last day of the quarter). For a yearly tenancy the notice must be at least 6 months and must expire on or after the last day of the tenancy period. If you have any doubts over whether a valid section 21 notice has been served then you should seek legal advice. Extra requirements New rules under the Deregulation Act 2015 apply to tenancies in England that started on or after 1 October 2015. You are not entitled to serve a section 21 notice for these tenancies unless: 1. The tenant has been in possession for at least 4 months if the tenancy is a fixed-term tenancy or a contractual periodic tenancy. (This condition doesn't apply to a statutory periodic tenancy.) 9
2. A section 21 notice isn't being used as a retaliatory eviction (under section 33 of the Deregulation Act 2015). See Retaliatory eviction (England only). 3. The landlord has given the tenant the following documents (note this condition doesn't apply if the current tenancy is a statutory periodic tenancy, which followed a fixed-term tenancy that started before 1 October 2015): 3.1. an energy performance certificate (free of charge) 3.2. a copy of a gas safety certificate 3.3. 'How to Rent: The checklist for renting in England' (published by the Department for Communities and Local Government). This checklist should be the version in circulation when the current tenancy started. If it was amended during the current tenancy, you don't have to give the tenant the new version. If you'd given the tenant this publication during a previous tenancy (for the same property between the same parties), you didn't need to give the tenant another copy at the start of the current tenancy as long as you'd given them the version in circulation when the current tenancy started. The questionnaire will work out if these requirements apply to your situation. If they do, then as well as the form N5B this document will also create a witness statement. You (or another relevant person) will have to sign this statement, declaring that the above documents were given to the tenants. Note that the Deregulation Act 2015 introduced 'use it or lose it' time limits for bringing possession claims in England. If the current tenancy is a contractual tenancy that started on or after 1 October 2015, or a statutory periodic tenancy that followed on from a fixed-term tenancy starting on or after that date, the claim for possession must generally be started within 6 months of the date of serving the section 21 notice. There is an exception to this rule if you had to give a notice period longer than 2 months (e.g. for contractual periodic quarterly or six-monthly tenancies). If the exception applies, you will lose the right to start a claim for possession 4 months after the section 21 notice expires. Retaliatory eviction (England only) New rules under the Deregulation Act 2015 (section 33) prevent the practice of a landlord claiming possession after the tenant has complained about the state of repair of the property. This 'retaliatory eviction' rule applies to all assured shorthold tenancies starting on or after 1 October 2015 in England, except for statutory periodic tenancies that follow on from a fixed term where that fixed term started before 1 October 2015. Section 33 doesn't apply if the: Property has been genuinely put on the market for sale at the time the section 21 notice is served Tenant has breached a term of their tenancy agreement or used the property in an improper manner, and that has given rise to the condition of the property that the tenant is complaining about. You cannot serve a section 21 notice on a tenant within 6 months from when your local housing authority served one (or more) of these notices on you under the following sections of the Housing Act 2004: 10
Sections 11 or 12 (improvement notices relating to health and safety hazards), or Section 40(7) (emergency remedial action notices). If the operation of one (or more) of these notices has been suspended, you can't serve a section 21 notice within 6 months of the date the suspension ends. The section 21 notice will be invalid if: The tenant had already made a complaint in writing about the condition of the property (to you or your agent) before you served the section 21 notice You didn't respond adequately to the complaint within 14 days, setting out the proposed remedial actions and a reasonable timescale The tenant then complained about the same matter to the local authority The local authority served on you a Section 11 or 12 or 40(7) notice (as above), and You served the section 21 notice on the tenant after they'd complained to you but before they'd complained to the local authority, or before the local authority had served notice on you. The requirement for the tenant's complaint to be in writing (to you or your agent) doesn't apply if they don't have your postal address or email address, or where the tenant has made reasonable efforts to contact you (or your agent) but has been unable to do so. Completing the document Methods & dates of service of notices The form requires you to enter the date that the section 21 notice was served upon the tenants. In order to complete this part of the claim form you should firstly consider the provisions in the tenancy agreement (if any) which state how notices/documents should be served and when they will be regarded as being received by the recipient. If the tenancy agreement does not have any such provisions then the following is a general guide which you can use to assist you to complete this part of the document. Method of service Deemed day of service 11
First class post or an alternative service which provides for delivery on the next working day Document Exchange Delivering the document to or leaving it at a permitted address Fax Other electronic method Personal service* The second day after it was posted, left with, delivered to or collected by the relevant service provider, provided that day is a business day; or if not, the next business day after that day. The second day after it was left with, delivered to or collected by the document exchange, provided that day is a business day; or if not, the next business day after that day. If it is delivered to or left at the permitted address on a business day before 4.30 pm., on that day; or in any other case, on the next business day after that day. If the transmission of the fax is completed on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was transmitted. If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent. If the document is served personally before 4.30p.m. on a business day**, on that day; or in any other case, on the next business day after that day. *A document is served personally on an individual by leaving it with that individual. **In this context, 'business day' means any day except Saturday, Sunday or a bank holiday, and 'bank holiday' includes Christmas Day and Good Friday. Which forms and documents do I need to start proceedings? You will need to provide the court with the following: 1. This form (N5B) 2. A copy of the earliest and most recent (if applicable) written tenancy agreements 3. A copy of the section 21 notice and evidence of its service upon the tenants (such as a receipted notice). You should consider completing a Certificate of Service form or a witness statement. You can create this using Form N215 - Certificate of service. 4. If applicable, a copy of a valid HMO or other applicable Housing Act 2004 licence or evidence that an application has been made to the local authority for one. 12
5. If applicable, a copy of the Deposit Protection Certificate or Insurance Premium Certificate to show that the deposit has been paid into a Government-approved tenancy deposit scheme. 6. If applicable (see Extra requirements), a witness statement (which will be created for you) and copies of the property's Gas Safety Certificate, Energy Performance Certificate and the 'How to rent' checklist. 7. Payment for the court fee, or, if you think you may be exempt from paying, a completed form EX160. Statement of truth The statement of truth is an important part of the N5B form. The person signing it is stating to the court that he has read the document and that the contents are true. You can be prosecuted for contempt of court if you sign a statement of truth but don't honestly believe the contents of the document. The statement of truth must be signed either by the landlord(s) or by their legal representative on their behalf. If there is more than one landlord they should all sign the statement of truth, unless advised otherwise by their legal representative. Alternatively your legal representative can sign it on your behalf. The legal representative would first want the landlords to confirm that they: 1. have read the document and any attachments to it, 2. agree that the contents of the documents are true, 3. have been advised of the consequences of making a false statement, and 4. are authorising the legal representative to sign on their behalf. If you have a legal representative you should check with them whether they wish you to sign the statement of truth or whether they will do so on your behalf. If your situation is subject to the Extra requirements, this document will also create a witness statement for you to sign. This will also contain a statement of truth, and the questionnaire will guide you on who is best to sign it. If you need further help, visit the Ministry of Justice website. Issuing a claim at court The claim may be issued in any County Court office, but it will save time if it is issued in the office that serves the area where the property is located. You can locate the office in your area using the HMCTS court finder. 13
You should be able to contact them between 10am and 4pm Monday to Friday. We recommend that you telephone the court office to ensure that it is the correct one, in order to avoid possible delays. You can issue a claim at court by sending the court forms and court fee by post (we recommend that this should be accompanied by a covering letter) or by personally attending the court office (no appointment needed). You will need to provide the court with the following: 1. Copies of all the court forms and supporting documents for each tenant, plus an extra set for the court to keep and another for the court to send back to you. So, for example, if there are 3 tenants, a total of 5 sets of court forms and supporting documents must be sent to the court. 2. A cheque for the court fee. The court fee is 355 to start the claim in the County Court. (It is only in exceptional circumstances that the claim should be started in the High Court where the fee to start proceedings is 480. Note this document is not suitable for High Court claims.) The fees may change and you should check Leaflet EX50 on the court service website. Details of the current court fee will be in this leaflet under the heading 'Non-money claims - to issue a claim for possession'. Cheques should be made payable to 'HM Courts & Tribunals Service'. We recommend that you retain a copy of the court forms and accompanying documents that you have sent to the court for your records. If you have posted the claim to the court, we recommend that you telephone the court around 5 days after posting to ensure that it has been received and is being acted upon, in order to avoid possible delays. The court will endorse the claim form with a claim number (which is a unique reference number that should be quoted in all future correspondence with the court) and an issue date. Summary of the procedure after issuing the claim Service Once the claim has been issued, the court will proceed to serve the claim on the tenants. This is the most usual method of service. It will then write to you confirming service. Defence & judgment in default The tenants will then have 14 days from the date of service to send their reply (defence) to the court stating why they oppose the claim or seeking a postponement of possession on grounds of exceptional hardship. If the tenants file a defence at court then a copy of it will be sent to you. 14
If the tenants fail to file a defence in the time provided then you will have three months to make a written request for the court to make a possession order against them. This is known as applying for judgment in default. The required form will be provided to you by the court. If this request is not made within three months the claim will be stayed (put on hold). If the tenants file a defence at court after the 14 days has expired but before you make a written request to the court to grant a possession order, then the defence will be accepted by the court. If the tenants apply to postpone the date of possession on the grounds that if they are ordered to vacate the property within 14 days (which is the usual time given in a possession order) they will suffer exceptional hardship and this is accepted by the judge, then the judge could allow the tenants up to six weeks to vacate the property instead of the usual 14 days. However, in the claim form you can choose to attend a hearing in the event that such an application is made by the tenants. At the hearing you or your representative may raise objections to the application. If you choose to attend the hearing then the court will not make a possession order against the tenants until the court hearing has concluded. There could be a delay in obtaining a hearing date from the court as they can be very busy and you should bear this in mind when deciding whether or not you want to attend such a hearing. Alternatively you could choose not to attend a hearing but instead send the court a letter containing your representations against the tenants' application on the grounds of exceptional hardship at the appropriate time. On receiving either a defence from the tenants or a request for judgment in default from you, the claim will be considered by a judge who will do one of the following; 1. Grant an order for possession of the property without the need for the parties to attend a court hearing, which it must do if a valid section 21 notice has been served and the claimant has established that they are entitled to recover possession; or 2. Set a date for the parties to attend a court hearing where the tenants have applied to delay possession of the grounds of exceptional hardship and you have chosen to attend a court hearing; or 3. Set a date for the parties to attend a court hearing or strike out your claim if s/he is not satisfied that: 3.1. the claim form was served on the tenants or 3.2. you have not served a valid section 21 or 3.3. you have not properly established a right to possession of the property according to the legislation, In either event the court will send a copy of the court order to you and the tenants. Preparing for a court hearing In the majority of cases a court hearing is not required. However, in the event that the court orders the parties to attend a court hearing it will send a copy of the court order to you and the tenants. You can usually expect the court order to state what steps need to be taken by either or both parties to prepare for the hearing. This 15
may well involve preparing a witness statement containing factual information concerning any issues raised by the court. If you do not understand the terms of the court order or you are unsure what you must do to prepare for the court hearing then you should seek legal advice. Depending on the issues involved, we suggest that you take the following documents with you to the court hearing: 1. The written tenancy agreement referred to in paragraph 2 of your N5B form, and, where applicable, the written tenancy agreement referred to in paragraph 3 of your N5B form. You can use a copy of a tenancy agreement where the original is not available 2. The original section 21 notice (or a copy if this is not available) and proof of service (if applicable). 3. Copies of all correspondence between you and the tenants. 4. Copies of all court documents and witness statements. 5. Any other evidence required to support the claim or respond to the tenants' defence. 6. A schedule of the costs you have incurred (including court fees, travel costs and time taken off work).you can create such a schedule of costs using a Schedule of costs for applications to court to recover costs. The court hearing The court must grant an absolute possession order if at the conclusion of the hearing the judge believes that you have established a right to possession of the property and will set a date by which the tenant must vacate the property (usually 14 days but this may be extended if the tenants successfully claim exceptional hardship ). Alternatively, if the judge is still not satisfied that you have established your right to possession then the judge may strike out your claim. After obtaining a possession order If the tenants fail to leave the property on or before the specified date given in the possession order then you may apply to the County Court for a warrant to evict them. The court bailiffs will evict the tenants on your behalf. Varying or setting the order aside If the judge's decision was made in the absence of the parties, it can be set aside or varied on application by you, your tenants or by the court itself, if it sees fit. If you believe that the court has not taken into 16
consideration some or all of the relevant facts of your claim when reaching its decision or if it has failed to properly apply the law, you should seek legal advice. Any application by you or the tenants must be made within 14 days from the date of the court judgment. Orders for costs The general rule is that a successful party can claim its costs against its opponent. However, any decision regarding costs is in the absolute discretion of the court. In claims under this procedure the costs that are recoverable if the claim is undefended and you obtain a judgment as a result of this, are limited to fixed costs determined under the court Civil Procedure Rules. However, if the tenancy agreement states that the tenants will be liable to pay the costs of the court proceedings then you should consider requesting the court to make an order for additional costs under the Civil Procedure Rules. This rule allows you to claim for the costs of the work (and disbursements) that would have been undertaken by a legal representative had you instructed one. Examples of the items of work you could claim for include, considering the terms of the tenancy agreement, drafting the court forms (including preparing any exhibits), correspondence sent and received, telephone calls made and received, preparing a witness statement and other documents for the court hearing, preparing for and attending the court hearing. You can also claim for your reasonable expenses, such as court fees and photocopying charges. If you can provide the court with evidence of the amount you have lost for the time you have reasonably spent on dealing with the claim then the court may make an order based on this amount. For example, if you are self-employed and charge an hourly rate to your customers then you can use previous invoices etc, as evidence of the rate which the court should apply. If you cannot provide this evidence to the court then the court will apply its own standard rate. The total amount that the court may award for costs claimed cannot exceed two thirds of the amount which would have been allowed to a legal representative and when deciding on the amount of costs the court will take into consideration factors such as the conduct of the parties during the course of the court proceedings and the tenants' financial means. You should bear in mind that the tenants may not have the financial means to pay any award for costs ordered against him. If the tenants are receiving public funding (legal aid) you may not recover your costs at all, even if you are successful. If you are unsuccessful or discontinue proceedings, then it is likely that you will have to pay your tenants' costs, if any, as well as your own. 17
Time frame The amount of time it takes to obtain an order for possession depends on a number of factors such as whether the court believes that a court hearing is required and/or how busy the court is. Typically, it can take between one month and four months before an order for possession is obtained. If the tenants are receiving Housing Benefit or Local Housing Allowance and need to be re-housed by the local authority then it is likely that it will take even longer before possession of the property is obtained. This is because the local authority will generally require the tenants to be evicted by court bailiffs before considering them for re-housing. Therefore, after the time given in the court order for the tenants to vacate the property has expired (usually 14 days) a further application for a 'Warrant for Possession' will need to be issued at court. This is an application to the county court bailiffs to evict the tenants - Form N325 Request for Warrant for Possession of Land. It could take up to a further three or four weeks before possession of the property is finally obtained. A court fee is payable on issuing the Warrant for Possession (see Leaflet EX50 under the heading 'Warrants - To issue warrant of possession'). 18