Frequently Asked Questions On Landlord Possession Proceedings
If you’re a landlord, you might have questions surrounding Landlord Possession Proceedings, and our team of dispute resolution experts are on-hand to break down the most commonly asked questions in this area.
There are two main routes to obtaining possession of residential property under an Assured Shorthold Tenancy Agreement, section 8 and section 21. Depending on the most appropriate route for your circumstances, our team of solicitors can answer your queries.
If you haven’t been able to find what you’re looking for here, please get in touch with our friendly team via our contact form.
The Most Popular Questions For Section 21
If the landlord has not protected the deposit within one of the approved tenancy deposit schemes (within 30 days and also issued prescribed information to the tenant) he cannot serve a valid section 21 notice unless he:
(i) returns the deposit;
(ii) agrees deductions from the deposit with the tenant;
(iii) has had an application determined by the Court regarding the deposit.
The landlord does not have to provide a reason for seeking possession when using the section 21 method of eviction.
You must have provided the tenant with the prescribed statutory information before a section 21 notice can be served. These are:
(i) a copy of the government’s official “How to Rent” booklet
(ii) a copy of the Energy Performance Certificate (EPC)
(iii) a copy of the current gas safety certificate in force at the time that the tenancy commenced.
Failure to serve the How to Rent booklet or the Gas Safety Certificate before the tenant moved in can be rectified and a section 21 notice will be valid as long as they have been served before the notice is served.
There is some doubt as to whether or not a failure to serve a copy of the EPC before the tenant went into occupation can be rectified and it may be that in effect this prevents a valid section 21 notice ever being served.
A minimum of 2 months notice must be given to the tenant and the notice cannot expire before the end of the fixed term of the tenancy.
You must obtain an order for possession from the court.
If the tenant still doesn’t leave, you must instruct the court bailiff to execute a Warrant of Possession.
You cannot evict a tenant yourself. The Protection from Eviction Act 1977 makes it illegal to unlawfully deprive an occupier of possession unless you believe and had reasonable cause to believe that the occupier had ceased to reside in the premises.
In practice, unless the tenant gives you a clear and unequivocal indication that they intend to leave and hands the keys back, it is safest to err on the side of caution and to instruct the bailiff.
Attendance at court is not usually necessary under the accelerated possession procedure as the court will tend to decide the matter on paper.
However, if the tenant alleges that exceptional hardship would be caused if s/he were made to leave the property or they raise a defence to the claim, the court will in all likelihood request that the parties attend for a short hearing.
The hearing will usually only be to decide whether the tenant should have up to 42 days to vacate rather than the usual 14.
No, not under the accelerated possession procedure.
The court will only deal with the issue of possession and will not make an order for payment of rent arrears under the accelerated possession procedure.
Should the landlord wish to recover rent arrears, separate county court proceedings will be required.
The tenant might decide to vacate at any stage during the process. However, if they do not the following timescale is typical:
Section 21 notice: At least 2 months
Court proceedings: Around 3 months
Court bailiff: Around 1 month
TOTAL: Around 6 months
Yes. However, costs are limited.
You can seek an Order that the tenant must repay you the Court fee (currently £355) and fixed costs of £79.50. However, please bear in mind that having an Order that the tenant must pay is not the same as the tenant actually paying.
The Most Popular Questions For Section 8
Yes. Section 8 is not concerned with the rules about protection of deposits.
Note however that if you have not protected the deposit failed to give the tenant the prescribed information within 30 days, the tenant may have a separate claim against you for damages equivalent to 1 to 3 times the amount of the deposit, and possibly two claims if the fixed term has expired.
Section 8 is a fault-based route. The landlord will have to establish that s/he can satisfy one of the 18 grounds set out in Schedule 2 of the Housing Act 1988.
Some of the grounds are “mandatory” – i.e. require the court to order possession, leaving the judge with no discretion – while others are “discretionary” – i.e. give the court the power to order possession, but leave it to the judge to decide whether to actually do so.
The usual grounds used by landlords are 8, 10 and 11 which relate to rent arrears. Ground 8 is a mandatory ground and sets out that if the tenant is 2 months in arrears on the day that the section 8 notice is served and the day of the hearing possession will be granted.
Grounds 10 and 11 – some other amount of rent less than 2 months being owed, and persistent non-payment or late-payment of rent – are discretionary grounds.
Note that there must be 2 months arrears at both the date of the notice AND the date of the hearing for Ground 8 to apply. If the arrears are reduced to less than 2 months by the date of the hearing, the court no longer has to make an order under mandatory ground 8, only under the discretionary grounds 10 and 11.
Depending on the ground of possession used the notice period is between 2 weeks and 2 months.
Grounds 8, 10 and 11 are the most common grounds and they only require a notice period of 2 weeks.
A hearing will be required to deal with the request for possession but you do not have to attend.
You can come along if you wish. Whether you attend in person or not Tinsdills will arrange for someone to attend the hearing on your behalf.
Can I obtain an order for payment of rent arrears at the same time?
The section 8 route allows the court to make both an order for possession and enter judgment against the tenant in respect of rent arrears.
The tenant might decide to vacate at any stage during the process. However, if they do not the following timescale is typically:
Section 8 notice: At least 2 weeks
Court proceedings: Around 2 months
Court bailiff: Around 1 month
TOTAL: Typically 3 to 3.5 months
Yes. However, costs are very limited, particularly if rent is the ground for possession, and considerably less than the actual costs incurred.
You can seek an order that the tenant must repay you the Court fee (currently £355) and fixed costs of £126.75.
However, please bear in mind that having an order that the tenant must pay is not the same as the tenant actually paying. It is frequently necessary to enforce the judgment in respect of rent arears and an order in respect of costs by way of separate enforcement proceedings. There are several enforcement options available which we will be happy to discuss with you further as appropriate.