Possession Proceedings

The majority of tenancy agreements are Assured Shorthold Tenancies. They are usually for a period of 6 or 12 months and the tenant is entitled to remain in the property for the entire duration of the tenancy. The landlord can only obtain possession if there is a breach of the tenancy agreement.

To obtain possession of the rented property, the landlord must obtain a court order for possession. An appropriate notice, depending upon the procedure used, must be served in writing on the tenant before proceedings can be issued. Although it is usually two months’ notice that is required, this is not always the case and calculation of the notice period can be complicated. Care should be taken to ensure that sufficient notice is given otherwise the notice will be ineffective and will have to be served again. This causes delay and could result in financial loss.

If the tenant does not leave the property there are two possible routes to regain possession of the property

Section 21

This is known as the accelerated procedure and deals only with the possession of the property, not with the recovery of unpaid rent, other monies or a claim against a guarantor. This is usually used when the landlord does not require a reason to serve the notice because the fixed term has expired.

If no defence is filed, the process can be quicker than the procedure in section 8  (see below), as it can often be dealt with without the need for a court hearing. Therefore, it is also, usually less costly.

Once proceedings are issued the tenant has fourteen days to file a defence. The Judge will look at the papers and consider any defence filed. If the Judge considers there to be a potential defence then the matter will be listed for hearing. If there is no credible defence then a possession order will be made giving the tenant 14 days to leave the property.

If the tenant does not leave the property, then a county court bailiff must be instructed to evict the tenant from the property. The Bailiff will set a date for the eviction and the tenant is notified of that date at least 14 days before. Arrangements must be made for a locksmith to attend on the eviction day, to make the property secure.

The tenant may ask the court to delay the eviction, but they will only be able to do this if they can show exceptional hardship and the county court can only extend the period for up to 42 days.

Section 8

If a landlord wishes to obtain possession of a rented property during the term of the tenancy, the landlord must have grounds for possession, as set out in Schedule 2 of the Housing Act 1988. The notice served must contain details of the grounds upon which possession is sought. Some of these grounds are mandatory, in which case the court must grant possession. Others are discretionary and will depend upon the specific issues in dispute and the surrounding circumstances. This process involves a hearing, sometimes several hearings, depending upon the issues arising.

Once proceedings are issued the court fixes a date for the first hearing. If no defence is filed then the Judge is likely to grant a possession order. The tenant is usually given 14 days to leave the property. The Judge does have the power to postpone or suspend an order to allow the tenant to comply with terms set out in the order e.g. payment of rent arrears by a specified date. If the circumstances of the tenant are such that possession would cause severe hardship the Judge may consider a further short delay.

As with section 21, if the tenant does not move out on the date specified then a court Bailiff will be appointed to attend the property on the eviction day to ensure that the tenant vacates.

Common Problems

We frequently come across situations in which the landlord has not followed correct procedures, for example by using the wrong court process, by not inserting the correct date in the notice or by failing to use appropriate grounds.

Why use Aletta Shaw?

• We can help you prepare your case to ensure the best possible arguments are put forward on your behalf and if necessary represent you in court proceedings which can be daunting for non-lawyers
• We offer fixed fees which means that you can plan your budget, which reassures you that your costs will be under control and not excessive.
• We are experienced solicitors who can guide you through the process and protect your interests
• As well as offering consultations in person, we offer Skype consultations meaning that you can save valuable time and money by not needing to travel to see us.