Possession – Landlord and Tenant Law

As every landlord knows, the biggest fear when letting out a property is that a tenant suddenly stops paying rent and is not contactable, whilst you still have to pay a mortgage without the income you relied on to pay it.

As soon as this happens, landlords want to take the property back, so it can be re-let. However, the English courts can be slow and frustrating – to get an order for possession, the correct procedures must be followed, otherwise the court can throw your claim out or delay it.

Residential Property – Evicting a Tenant

Under English law there are different routes available for commercial property landlords vis a vis residential property landlords.

Most residential property landlords will allow a tenant some delay in rent payment, but repeated failure to pay rent is normally what triggers the eviction process. Landlords still need to be careful  because failure to follow the correct process can result in a tenant’s claim for unlawful eviction and is potentially a criminal offence.

The main steps in any residential property possession are:

  1. Serving a notice on the tenant making it clear you want the property back;
  2. Filing a claim for possession at the county court;
  3. Attending a court hearing for possession; and,
  4. Enforcing the court order for possession.

As solicitors, the tenancy agreement is what we look at first to consider what the rights and responsibilities of both landlords and tenants are. Nowadays most short-term residential tenancy agreements are ‘Assured Shorthold Tenancies’. These typically result in the landlord serve one of two types of notice under the Housing Act 1988:

1.  A Section 8 Notice

  • This notice can be served any time during a tenancy;
  • The notice period is 14 days;
  • It can relate to mandatory or discretionary grounds (such as rent arrears, breach of the tenancy terms or antisocial behaviour), so depending on the breaches by the tenant, the court will have a choice about whether or not to grant a possession order; and,
  • For grounds like rent arrears, the requirements must be met on the day of the hearing, so a tenant can pay enough for the arrears to drop below the threshold and avoid a possession order. 

2. A Section 21 Notice

  • This is a ‘no fault’ route. The landlord does not need to show the tenant has done anything wrong;
  • The notice period is 2 months;
  • The Court can issue an accelerated possession order, without a hearing;
  • The claim has to be issued within 6 months of the notice being served.

If the tenant does not leave even after the court orders possession, we can assist you in instructing bailiffs to re-enter the property and enforce the court order.

This article contains only a summary of the law and should not be relied on as an advice. If you want to recover possession of your property or have any landlord and tenant dispute, we will be happy to act for you. Contact LF Legal today on 0203 146 3549 / [email protected]

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