GAINING POSSESSION OF A PROPERTY
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Introduction
When is a Court Order not required?
Commencing Possession Proceedings
Completing a Section 8 Notice
Protected Tenants under the Rent Act (1977)
Statutory Tenants under the Rent Act (1977)
Serving Notices
Commencing Court Proceedings
Summary Judgements
Possessions orders
Enforcement of Possession Orders
Grounds for Possession - Mandatory Grounds
Discretionary grounds on which the court may order possession
Notice periods
Serving Notices
Discretionary Grounds for Possession
Protected Tenancies under the Rent Act (1977)
Abandonment
Introduction
A landlord must obtain a court order for possession if the tenant will not leave the landlords property voluntarily. The only exception to this is excluded licenses (where the occupier merely shares a certain part of the property with the owner). Landlord must ensure that they never take actions that are in contravention of the Protection from Eviction Act (1977) or any offence under the Criminal Law Act (1977)
When is a Court Order not required?
- If before the tenancy was granted, the landlord/licensor occupied the property as his only or main home and, under the terms of the tenancy or license, the occupier now shares accommodation with him.
- The occupier shares accommodation with a member or members of the landlords family and the following conditions are also fulfilled:
- The landlord's/licensor's home is in the same building (excluding purpose-built blocks of flats)
A member of the landlords family shares accommodation with the tenant/licensee (family is widely defined to include aunts etc.)
- The occupier has failed to vacate a property let for the purposes of a holiday
- The accommodation is available rent free to the tenant
- A tenancy or license was given to a squatter or trespasser as a temporary measure
- The accommodation is in a residential hostel
Common law requires that only reasonable notice (a notice to quit) be given to the occupier. This is generally interpreted as four weeks.
Commencing Possession Proceedings
Shorthold Tenancies / Section 21 Notice
The landlord cannot regain possession during the first six months of a shorthold tenancy. For periods exceeding 6 months, before starting proceedings, the landlord must serve a termination notice under section 21 of the Housing Act (1988) (known as a section 21 notice) which must be served in writing at least two months before possession is required.
A Section 21 notice:
- Has to be in writing
- Does not have to be in a set form
- Must be served on the tenant after the tenancy has commenced but 2 months before the date that possession is required (i.e. the last day of the fixed term)*
- If the landlord does not serve the notice during the fixed term, the termination date will be the last day of a rent period at least two months after the notice is given to the tenant
If the notice has been correctly served during the fixed term and the tenant does not move out at the end of it, the landlord may start possession proceedings immediately without having to serve any further notices.
Section 21 notices deal with recovering possession of a property following a shorthold tenancy at the end of the term. However in other circumstances, a section 8 notice can be used (see section below)
(* Note that for a statutory periodic tenancy, the day on which the notice expires must be the last day of a period of a tenancy. If the period of the tenancy is `per calendar month' and it commenced on the 22nd day of a month, then the period will end on the 21st day of the month following).
Section 8 Notices
In order to start possession proceedings against an Assured or Shorthold tenant before the fixed term has come to an end (e.g. due to a breach of the contract such as non -payment of rent), the landlord will need to serve notice of his intention to seek possession, based on one or more of the legal grounds of possession under the Housing Act (1988) (see end of this section).
This is known as a Section 8 Notice, and it must be in a prescribed form (available from law stationers)
Grounds For Possession
Some of the grounds are mandatory which means that if the Landlord proves one or more of these then the court has no option but to award him possession.
The other grounds are discretionary which means that he will be only awarded possession of the court considers it reasonable to do so.
For grounds 1,2,5,6,7.9 or 16 at least 2 months notice must be given
For all other grounds the period required is 2 weeks.
If the assured tenancy is a fixed-term agreement that has not yet expired then the following restrictions apply:
If the tenancy was granted on or after 15 January 1989 then the landlord should ensure that:
The restriction on type of grounds can be overcome if the tenancy agreement contains a break clause allowing the landlord to terminate the fixed term on giving notice (e.g. a month) to that effect. Then the landlord can use any of the 16 grounds for possession as appropriate.
If the tenancy is an assured tenancy, the notice cannot take effect any earlier than a notice to quit. If the rent is payable quarterly, the section 8 notice must allow at least 3 months notice before possession proceedings are commenced.
For rent arrears it is often advisable for the landlord to seek possession on a combination of mandatory (ground 8 - tenant was 8 weeks in rent arrears both when the landlord served the notice and at the date of the court hearing), and discretionary grounds (grounds 10 and 11- tenant was both behind with his rent and has been persistently behind in paying rent).
Completing a Section 8 Notice
It is important to check with the courts or law stationer that you are using a current form or the case will be dismissed. A form is also enclosed with this handbook.
The property address must be in full and totally unambiguous. The grounds that possession is being sought on should be fully detailed using the exact words cited in the act.
Detail the reasons why each ground is being relied upon e.g. if the ground is for rent arrears, attach a schedule of rent payments, when they were due, payments that have been missed etc.
If there is more than one tenant the notice should be addressed to all tenants jointly, (unless each tenant has a separate tenancy agreement).
For Proceedings Date, you should specify the date when the notice expires. For rent arrears, this would usually be two week from the date of the notice.
Protected Tenants under the Rent Act (1977)
These are protected tenancies granted prior 15 January 1989.
To regain possession the landlord must serve a valid notice to quit which must be in a prescribed form (available from law stationers) and must contain prescribed information about the tenant's rights.
A minimum of four weeks notice is required is required if the tenancy is a periodic one.
In addition to the above, a landlord will also need to prove one or more of the grounds for possession set out in the Rent Act (1977).
Statutory Tenants under the Rent Act (1977)
When a protected tenancy expires or is terminated by a notice to quit, the protected tenant becomes a statutory tenant. This means that he has a right to live in the property on the same terms as before until the landlord obtains a court order under the act.
The landlord is not legally obliged to give notice to quit to terminate a statutory tenancy, but may well be advised to do so since the tenant should be given reasonable notice of a landlords intention to apply for a possession order against him.
Serving Notices
Once the notice has been completed in the correct form, it must be served on the tenant or tenants either in person or by post.
When serving a notice by post, it is recommended that it be sent either by registered post or recorded delivery so that the landlord has a post office receipt as proof of posting. However the disadvantage of this method is that tenants can refuse to take delivery and it will be returned, or they may claim that an empty envelope was sent!
Personal delivery to the property itself is another useful option particularly if an independent witness can accompany you.
Always remember to take a copy of the notice and record the date it was either sent or delivered to the property.
Commencing Court Proceedings
A landlord will need to start court proceedings in the county court for the district in which the property is located. This can lead ultimately to a hearing in court, but in some cases a far quicker and easier route for a landlord is the accelerated possession procedure
Accelerated Possession Procedure:
This procedure is designed to award possession to the landlord without the need for a court hearing providing he has mandatory ground for possession. However this procedure can only be used if the following have been satisfied:
- The terms of the tenancy are set out in a written agreement
- The tenancy agreement was made on or after 15 January 1989 and the tenant did not live in the property before that date
- The fixed term (minimum 6 months) has expired
- The tenant is the original tenant (i.e. the tenancy has not been assigned to anyone else)
- The termination notice under section 21 (minimum 2 months) has been served and expired
It cannot be used for claims of possession due to rent arrears or breach of the tenancy during the fixed term which have to follow the more lengthy standard procedure (see separate section). Since the rules were amended on October 2001 landlords now only need to complete form N5B.
This form must be supported by an affidavit (sworn statement) which is printed in the application form. A copy of the tenancy agreement and notices served on the tenant must be attached to the form.
The court then serves these papers on the tenant who is allowed 14 days in which to reply on the printed form (N222) which accompanies the papers.
If the tenant does not reply within 14 days, the landlord can apply for a possession order by simply tearing off the relevant part of the notice of Issue of Application (form N206A) requesting judgement,
and sending it to the court.
If the court is satisfied that the landlord has a valid claim for possession it will make an order for possession, but if it doesn't, it will fix a hearing date and both parties will be asked to attend court.
An order for possession will take effect 14 days from when the judgement was entered.
A landlord must ask the court to appoint a Bailiff if the tenant does not quit at that time. A landlord cannot enforce possession himself.
A Possession Action (Court Hearing):
You can initiate proceedings as soon as the section 8 notice has expired. A landlord has then to complete the following forms:
- Form N5 summons for possession of a property. One copy should be completed for the court and one copy for each defendant. Complete both the claimants and defendants names in full.
- Form N119 Particulars of claim for possession in cases of non-payment of rent (this does not need to be completed where possession is not sought on the grounds of rent arrears). Again one copy for the court and one for each defendant should be completed. Paragraph 3b can be used to add further grounds for possession other than rent arrears. Always give the court as much information as possible. Note also that the claimant can claim interest on rent arrears at the prevailing bank rate from the date that shortfall occurred.
The relevant form(s) are then sent together with the appropriate court fee to the county court. It is always worth checking with the court which are the correct forms and how much the fee is as both are subject to periodic change.
Note that as from 26 April 1999, the word claimant is used instead of plaintiff, and the word claim is used in place of case.
The particulars of the claim must be in the correct form and the grounds for possession must be specified. If the action is for rent arrears then all details must be given. Details of all steps already taken to recover rent should be detailed, as should the tenant's financial circumstances (if known).
The court will prepare a notice of issue (form N206) which will include the case number and hearing date, and will normally serve the summons and other documents on the tenant. These are normally posted and the landlord will be notified of this. If you are serving the documents yourself then then they will hand you back both copies together with form N215 (affidavit of Service). Again the tenant has 14 days to reply on the form given to him.
The landlord should attend the hearing where he will be asked to present the tenancy agreement and the relevant notices and give evidence to prove his claim for possession. The tenant is entitled to attend and make his own representations.
Summary Judgements
Summary judgements have been a useful procedure for dealing swiftly and cost-effectively with claims that have no defence. While no court is going to grant summary judgement against a tenant defending his right to stay in his own home unless the case against him is convincing, the courts have been able to grant summary judgements against residential tenants whose defences were bound to fail at trial.
However, from 26 April 1999 any residential tenant who puts in a defence, the facts of which he is prepared to verify as true and which disclose a defence in law, will force a landlord to the expense and delay of a trial. Tenants can frequently obtain legal aid to assist them and therefore delay eviction at no expense to themselves. Two popular defences are harassment and disrepair and Landlords should take steps to protect themselves from these allegations.
Possessions orders
Absolute Order for Possession:
An absolute order will be made where the landlord proves a mandatory ground for possession and the tenant must vacate the property on the date specified. For example for an assured shorthold tenancy, providing the landlord has served the necessary notices and it is 6 months after the original tenancy began, the court has no choice but to make an order for possession requiring the tenant to vacate 14 days after the date of the hearing.
The only discretion the court has is to postpone the date for up to 42 days if the tenant can prove exceptional hardship.
An absolute order for possession would again be appropriate for an assured tenancy where the landlord has served the required notices and the tenant has no statutory protection (e.g. where there is a resident landlord) under the Rent Acts or Housing Acts
Suspended Order for Possession:
These orders are often made in cases of rent arrears. If a landlord can only prove a discretionary ground, the court may make an order for possession but suspend it if the tenant meets certain conditions.
For example if the tenant pays the rent plus a specified amount each week to pay off the arrears, he cannot be evicted.
If the tenant defaults on these conditions, the landlord can apply to the court for the order to be made absolute or for a warrant of possession to be issued.
Adjournment:
In circumstances where a landlord is relying upon discretionary rather than mandatory grounds for possession, a court may decide that the tenants conduct has not caused a serious breach of the tenancy agreement, and not to grant an order for possession. They may simply adjourn the proceedings either indefinitely or to a later date, subject to certain terms of conditions.
In cases of rent arrears this may be an alternative to a suspended possession order. However, if the tenant defaults on the agreement, the landlord will have to re-apply to the court for a possession order. The court may either make a suspended or absolute possession order depending on the seriousness of the case and the tenant's circumstances.
Dismissed Proceedings:
If the landlord fails in his claim for possession (e.g. he has not served the correct notices, they are incorrectly completed, or he has failed to supply documentation in support of his claim) the landlords proceedings may be dismissed. The tenant may then apply for an order for costs against the landlord.
Enforcement of Possession Orders
If the landlord has obtained an absolute possession order and the tenant fails to vacate by the date specified, the landlord must apply to the court for a warrant of possession.
A landlord must not enforce a possession order himself, it must be done through the court bailiff.
The warrant for possession is an instruction to the bailiff to evict the tenant. The bailiff will send notice to the tenant of the date and time that the order will be carried out. The tenant can apply for this to be deferred but this will only be granted in exceptional circumstances.
A Bailiff will not enforce possession if the tenant keeps a dog that is not in control, and the Bailiff feels at risk. He will then seek assistance, which will delay possession taking place. If the Landlord is aware that the problem may arise, he should inform the Bailiff prior to the possession date.
Grounds for Possession - Mandatory Grounds:
The court must order possession if one of the following grounds is proven. A prior notice means that the landlord must have notified the tenant in writing, before the tenancy started, that he might seek possession on this ground:
Ground 1 (prior notice)
The landlord used to live in the property as his only or main home, Or, so long as the landlord or someone before him did not buy the property after the tenancy started, the landlord or his wife requires it to live in as his main home.
Ground 2 (prior notice)
The property is subject to a mortgage which was granted before the tenancy started and the lender (usually a bank or building society), wants to sell it, normally to pay off mortgage arrears.
Ground 3 (prior notice)
The tenancy is for a fixed term of not more than 8 months and at some time during the 12 months before the tenancy started, the property was let for a holiday.
Ground 4 (prior notice)
The tenancy is for a fixed term of not more than 12 months and at some time during the 12 months before the tenancy started, the property was let to students by an educational establishment such as a university or college.
Ground 5 (prior notice)
The property is held for use for a minister of religion and is now needed for that purpose.
Ground 6
The landlord intends to substantially redevelop the property and cannot do so with the tenant there. This ground cannot be used where the landlord, or someone before him, bought the property with an existing tenant, or where the work could be carried out without the tenant having to move. The tenant's removal expenses will have to be paid by the landlord.
Ground 7
The former tenant, who must have had a contractual periodic tenancy or statutory periodic tenancy, has died in the 12 months before possession proceeding started and there is no one living there who has a right to succeed to the tenancy.
Ground 8
The tenant owed at least 2 months' rent if the tenancy is on a monthly basis or
8 weeks' rent if it is on a weekly basis, both when the landlord gave notice seeking possession and at the date of the court hearing.
Note: This ground was amended by the Housing Act 1996 and applies from 28 February 1997.
Discretionary grounds on which the court may order possession
It will be at the discretion of the court to decide what action to take if one of the following grounds is proven:
Ground 9
Suitable alternative accommodation is available for the tenant, or will be when the court order takes effect. The tenant's removal expenses will have to be paid by the landlord.
Ground 10
The tenant was behind with his rent both when the landlord served notice seeking possession and when he began court proceedings.
Ground 11
Even if the tenant was not behind with his rent when the landlord started possession proceedings, the tenant has been persistently late in paying his rent.
Ground 12
The tenant has broken one or more of the terms of the tenancy agreement, except the obligation to pay rent.
Ground 13
The condition of the property has got worse because of the behavior of the tenant or any other person living there.
Ground 14
The tenant, or someone living in or visiting the property:
- Has caused, or is likely to cause, a nuisance of annoyance to someone living in or visiting the locality;
Or - Has been convicted of using the property, or allowing it to be used, for immoral or illegal purposes, or an arrestable offence committed in the property or in the locality.
Note: this ground was amended by the Housing act 1996 and applies from 28 February 1997.
Ground 15
The condition of the furniture in the property has got worse because it has been ill treated by the tenant or any other person living there.
Ground 16
The tenancy was granted because the tenant was employed by the landlord, or a former landlord, but he is no longer employed by the landlord.
Ground 17
The landlord was persuaded to grant the tenancy on the basis of a false statement knowingly or recklessly made by the tenant, or a person acting at the tenant's instigation
Note: This is a new ground added by the Housing Act 1996 and applies from 28 February 1997.
Notice periods
When a protected tenancy expires or is terminated by a notice to quit, the protected tenant becomes a statutory tenant. This means that he has a right to live in the property on the same terms as before until the landlord obtains a court order under the act.
The landlord is not legally obliged to give notice to quit to terminate a statutory tenancy, but may well be advised to do so since the tenant should be given reasonable notice of a landlords intention to apply for a possession order against him.
Serving Notices
The landlord must serve notice, seeking possession of the property, on the tenant before starting court proceedings. He must give the following amount of notice:
- For grounds 3, 4, 8, 10, 11, 12, 13, 15 or 17 - at least 2 weeks
- For grounds 1, 2, 5, 6, 7, 9 and 16 - at least 2 months
- For ground 14 from 28 February 1997 - he can start proceedings as soon as he has served notice.
If the tenancy is on a contractual periodic or statutory periodic basis, the notice period must end on the last day of a rent period.
Discretionary Grounds for Possession :
Protected Tenancies under the Rent Act (1977)
Introduction
For tenancies granted prior to 15 January 1989, if a landlord wishes to gain possession of a property, he must:
- Serve a valid notice to quit
- Prove one or more of the grounds for possession (called cases)
Cases :
Case 1:
Where any rent lawfully due from the tenant has not been paid or any obligation of the protected or statutory tenancy as been broken or not performed.
Note that non-payment of rent is only a discretionary ground. Also even if you establish that the arrears exist, you may not regain possession because the court may not consider it reasonable to make such an order.
Case 2:
Where the tenant or any person lodging with him or any sub-tenant of his has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers, or has been convicted of using the dwelling house (or allowing it to be used) for immoral or illegal purposes.
This is very similar to ground 14 of the current grounds for possession
Case 3:
Where the court considers that the condition of the property has deteriorated due to neglect by the tenant (or sub-tenants)
This is very similar to the current ground 13 although it does not apply to common parts of the building
Case 4:
Where the condition of the furniture provided to the tenant has, in the opinion of the court, deteriorated due to ill treatment by the tenant, or their lodger or sub-tenant which they have not taken reasonable steps to remove
Case 5:
Where the tenant has been given to notice to quit, and because of this, the landlord has sold the house or made other arrangements which would be prejudiced if he could not obtain possession
Case 6:
Where the tenant has assigned or sub-let the property without the consent of the landlord.
This case will apply whether or not there is any express clause in the agreement prohibiting the transfer of the tenancy.
Case 7:
Has now been repealed
Case 8:
Where the property was let to the tenant because he was employed by the landlord. If that employment ceases then as a consequence, the landlord has to then prove that he 'reasonably' requires possession of the property to let to another employee.
Case 9:
Where the property is required by the landlord for occupation by himself, any son or daughter over 18 years of age (or any other near relation) and the landlord did not become landlord by purchasing the property or any interest therein.
Note: Courts may not order possession if having looked at the circumstances, greater hardship would be caused by granting the order than refusing it. Also, even if the landlord proves this point, courts will only order possession if it considers it reasonable to do so.
Case 10:
This is little used as it allows possession if the tenant has sub-let part of the house at a rent greater than is legally permitted. It ties in with the fair rent system where the local Rent Officer fixes the rent that can be lawfully charged under a Rent Act letting.
Suitable Alternative Accommodation
The Rent Act allows for a court to order possession if it considers that the landlord is offering a tenant suitable alternative accommodation..
Abandonment
When a tenant seemingly abandons a property, it puts the landlord in an uncertain and vulnerable position. If he enters the property, decides its empty and abandoned and then re-lets it, the tenant may return and accuse him of unlawful eviction.
Therefore the best measure that a landlord can take to protect himself is to apply to the county court for a possession order and once granted, re-enter the building in the presence of a court bailiff, in whose presence the locks can be changed.
It is always worth trying to obtain an early hearing by explaining you dilemma to the court. You will also need to present convincing evidence as to why you consider that a property has been abandoned (e.g. detailing you efforts to contact the tenant, evidence from other people or tenants that the person(s) have not been seen for a period of time.
Whilst the law gives a landlord the right to enter a premise that he believes to be abandoned, care must be taken, and it is wise to ask a reliable person to accompany you. Ask them to provide a written statement of what they found when they entered the building.
If you then feel certain that the property has been abandoned and have sufficient evidence that would make a court believe that you behaved reasonably, you may wish to take the risk of re-letting the property without a court order. To assist your case, consider putting a notice on the tenants door to give notice of your intended action. An example is given below:
NOTICE OF INTENT TO TAKE OVER A PROPERTY.
I (Landlords name, address and telephone number) being the landlord of (property address) believe that the tenant known to me as (Name of tenant), who has lived in the said property since (appropriate date), has vacated the subject property even though he / she gave me no notice of his / her intention to do so. In the company of (name) I entered the subject property on (date) and the situation confirmed my belief that the tenant had vacated.
Anyone with any relevant information as to the whereabouts of the tenant should contact me not later than (date). If by this date I have not been able to contact the tenant, nor has the tenant contacted me, I will take over the subject property on the not unreasonable assumption that the tenant has indeed left.
Prior to this date, the tenant is of course free to return to the subject property.
(Name of Landlord)
(Date)
(Signature)
Always remember however, that in taking this action, the court must consider your actions to be reasonable or you could be found guilty of illegal eviction.
Preventing abandonment - Tenancy Agreement Clauses
A possible precaution (but certainly not a safeguard) against abandonment is to include a clause in the tenancy agreement to deal with this situation. A possible one used by the Southern Private Landlords Association id suggested below:
If the tenant is to be absent from the property for any period exceeding 10 days, then the landlord shall be notified by the tenant in advance of the commencement of such period of the actual dates that the premises will be unoccupied (if such absence is to exceed 14 days then the tenant shall notify the landlord in writing)
