Possession Claims:

Although article this is published today, 1st April, tenant eviction is no juke!

Eviction should be the last thing on a landlord’s mind, but sometimes there’s no choice. It’s a last resort, but better done early than too late when your tenant has run-up massive rent arrears.

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When all else fails and perhaps communications have broken down, the tenant has refused to accept all offers of help, such as re-scheduling payments and seeking debt advice, then as clean a break as possible is what’s needed.

There are three vital steps to achieve this, and you must:

1 – have taken the right steps when you set-up the tenancy in the first place; complying with all the statutory requirements, and of these there are many, and keeping copies of all important documents, tenancy application, inventory report signed by the tenant, and the tenancy agreement etc.

2 – serve a valid eviction notice

3 – understand and comply with court procedure, following the guidance in the CPR 55.

This is not “rocket science”, it just requires a bit of due diligence and some careful reading of the rules; a few hours work will do it if you want to handle your possession claim yourself as a LIG – litigant in person, but you might consider an eviction specialist of a solicitor.  

Serving Notice:

All the relevant notices are now available free online, so there’s no need to go paying for them; what’s more if you get these from the government website you know they are up-to-date, which is very important.

Be aware of the minimum notice period and make sure this is exceeded before commencing court proceedings, otherwise the tenant could claim they had insufficient notice. Secondly, deliver by hand if possible and have a reliable witness with you. Delivering through the letter box is acceptable, with a witness, but failing that send the notice by first class post and get proof of postage from the post office.

Section 21 or Section 8?

Section 21 is always the preferable way to go, it’s simpler, quicker and the outcome is more certain. There’s no need to prove breach of contract as with section 8, where the landlord must show in court how one (or more) of the 17 grounds allowing possession has been transgressed.

With section 21, using the accelerated possession route (as opposed to the standard route), there’s usually no need for a court hearing – the judge will assess the claim on the paperwork alone, but this must be complete and without errors.

The disadvantage with section 21 is its long notice period (2 months), and if you have trouble such as arrears early on in your tenancy section 8 with just 2 weeks’ notice may be the best choice.

The thing to bear in mind with section 8; if you don’t stick to and meet the mandatory grounds (as opposed to discretionary grounds) requirements (arrears must be at least 2 months for example) the tenant may bring a valid defence or even a counter claim, which you are them obliged to defend yourself – this can get very expensive in legal costs.

With the assured shorthold tenancy (AST) the section 21 “no fault” possession notice you are serving a “notice requiring possession” and you don’t need to give any reason for claiming possession. For example, it may be rent arrears, anti-social behaviour, damage to your property, or it may simply be that you want to sell the property.

In the case of section 8 you are serving a “notice to quit” which means you are seeking possession because your tenant has breached one or more of the grounds for possession listed in schedule 2 of the Housing Act 1988 as amended. You need to specify the exact grounds on which you base your claim in the exact wording from the Act.

You cannot force your tenant out of the property until you have obtained a possession order from the court, and even then, if the tenant refuses to move, the court bailiff must evict – you cannot do this yourself. The whole process can take many months (9 months being the average for section 21)

Serving a Valid Section 21 Notice

Under recent legislation the serving of a valid section 21 notice has become much more complicated due to the statutory requirements under various Acts, which must be complied with. In the case of section 8 this process is less onerous.

Make sure you give the right amount of notice – 2 months minimum which cannot be served within the first 4 months of a new AST (not renewed) and the notice lasts for 6 months maximum.

If a guarantor is in place, make sure you keep them informed of every step in the process by sending them documented copies.

These are the key requirements which must be complied with before you can serve a valid section 21 notice:

  • Make sure your deposit (when applicable) has been protected with one of the approved schemes and within the 30 days allowed, after receiving it
  • Make sure you served the tenant (and whoever gave the deposit) the necessary statutory information about the scheme
  • Make sure you served on your tenant a current Gas Safety Certificate (when applicable) before the tenancy commenced – this cannot be remedied later as the law currently stands.
  • You will soon be required to provide an Electrical Safety Certificate
  • Make sure you gave your tenant a current Energy Performance Certificate (EPC) and you will soon be required to show that your property complies with MEES, a minimum of EPC rating E.
  • Make sure you gave your tenant a government provided “How to Rent” guide, the version of which was current at the time of the start of the tenancy.
  • The Right-to-Rent checks, copies of passports or other documents showing the tenant/s have a current right to rent.
  • If you are in a Landlord Licensing Scheme location, or you are dealing with an HMO tenant here, make sure you have the correct documentation to show you have the correct authority.
  • If you have received any notification from your tenant that there are repairs or safety issues that need attending to, make sure you have responded to these and there is no improvement order in place.

These are the key statutory requirements but you should also keep copies of other keep documents, some of which will be required when you apply to the court:

  • The tenancy application form
  • The detailed inventory report, ideally produced by an independent inventory clerk.
  • The tenancy agreement

Judges are unforgiving of errors and omissions in documentation. If the tenant defends the claim for possession, in which case a court hearing will be necessary, you will have to attend court. The secret to success in any court claim is to make the judge’s job as easy as possible so that he or she can make sense of the documentation easily – keep it clear, concise, and organised.

If you failed to carry out any of the above steps at the start of the tenancy, some (but not all) of the steps can be remedied before you service the section 21 notice. For example, a deposit can be returned to the tenant if it was not protected, but you would still be liable to a fine.

If you failed to fulfil the requirements for a section 21 claim, you will have no choice but to use section 8, but only if you are confident there has be a breach of one or more of the grounds for possession.

Applying to the court

Once the minimum notice period has expired (2 months for section 21, and usually 2 weeks for section 8) you can apply to the court for a possession order using the appropriate court forms which are available online – see links below.

Defending Possession Counterclaims

Your tenant may challenge your claim for possession, for which a court hearing will be set. There are limited grounds for this with section 21, usually on a technical omission, but it’s a lot different with section 8. If at the initial hearing the section 8 case cannot be resolved quickly, a further trial hearing will be set, often months away. The judge may also request inspections and expert reports for dilapidations defences, so this is when things get drawn out and expensive.

Avoiding claims for possession

Possession claims can be complicated and of uncertain of outcome and cost. Landlords should not enter into this process lightly and should do all they can to avoid it. Talk to your tenants and try to reach an amicable solution if at all possible.

If you are unable to reach an agreement, and you believe that you have strong grounds for eviction, and you can meet all of the above, you might give it a try. If you don’t feel confident to do it yourself, then consider an eviction specialist such as www.Landlordaction.co.uk, or contact a solicitor with property expertise – https://www.landlordzone.co.uk/suppliers-directory/solicitors-legal

Evicting Tenants (England and Wales) here

Form N5B England: Claim possession of a property located wholly in England (accelerated procedure) here

Form N5: Make a claim for possession of property (section 8 and standard route section 21) here

©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law, always seek professional advice.

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