Landlords: Residential possession and the law

Landlords: Are you prepared for MEES changes 1st April 2023?

Practical steps a landlord can take

By By Michael Richards – Associate

As the cost of living continues to increase, according to the UK Government there has been an increase in landlords wishing to recover possession of residential properties. Reasons include when:

the tenant is in serious rent arrears (more than 2 months or the equivalent).
the tenant has breached other terms of the tenancy agreement such as having pets without the landlord’s permission, anti-social behaviour, causing the property to fall into disrepair, and unlawfully subletting.
the landlord simply wants to sell the property.

If you are a landlord, you may well be aware that this process can be incredibly frustrating, and that the practice can favour tenants.

So, where does the law stand and what actions can landlords take? In this blog Michael Richards applies to properties within England as properties in Wales are subject to a different process. Legal advice should be sought before considering servicing any notice.

3 steps a landlord can take

A landlord cannot simply re-enter a property and change the locks. This is in breach of the tenancy and could result in criminal proceedings. So, what action can landlords take? There are 3 steps that can be taken to recover possession of residential property:

Serving notice on the tenant that possession is required (the notice of possession).

Section 8 Notice (breach of tenancy/serious rent arrears).
Section 21 Notice (non-fault eviction)

2. Issuing a claim for possession in the county court.

3. Recovering possession after Judgment.

What if the tenant fails to leave the property? After a notice of possession expires, the proper procedure must be followed. A landlord must obtain a possession order from the court before trying to take back possession. Even when the notice seeking possession has expired, landlords do not have the right to evict the tenant without a court order. After the court has made the possession order, a bailiff’s services may be required to recover possession after Judgment.

Landlords are strongly recommended to seek the advice from a lawyer before starting possession proceedings. If the notice is not correct and does not comply with the procedure, a landlord could be delaying possession and/or exposing themselves to costs sanctions.

Serving notice of possession

Section 8 – ‘fault notice’

A section 8 notice is generally used where the tenant has breached terms of the tenancy, most commonly unpaid rent. The notice lets the tenant know that the landlord intends to issue proceedings for possession of the property on the grounds specified in the notice. Click here for the specific details for each Section 8 Notice and the notice periods a landlord can rely upon.

The notice states the earliest date that proceedings will begin. Landlords must specify the correct date and must not start possession proceedings before the notice expires.

What to do after the fault notice has expired?

If the tenant has not voluntarily vacated, as the landlord you will have to issue court proceedings to recover possession from the court. If a claim is not issued within 12 months of the notice being served, it becomes invalid and a fresh notice will need to be issued.

Section 21 – ‘no fault notice’

The tenant does not need to be in breach of the terms of the tenancy for this notice to be served. After the notice expires, the landlord can issue court proceedings for an order requiring the tenant to give the landlord possession of the property.

In this situation, seek legal advice regarding the appropriate notice and its validity.

As the landlord you must ensure that you serve a valid notice, first checking that you:

1. Are using the correct form.
2. Have included all the correct details on the form, and there are no spelling mistakes.
3. Are giving the correct amount of notice, accounting for the time for service.
4. Can provide a Certificate of Service to confirm when and how the notice was served.
5. Are serving the notice by the correct method of service referred to in the tenancy.
6. Have properly dealt with any tenancy deposit (if one was taken) and provided a Tenancy Deposit Certificate and prescribed information.
7. Have provided the tenant with an energy performance certificate (EPC).
8. Have provided the tenant with a valid gas safety certificate at the time of entering the tenancy, and certificates throughout the period of the tenancy.
9. Have provided the tenant with the ‘How to Rent’ guide.
10. Have not served a notice before you are entitled to do so. (You are not entitled to serve a section 21 notice on a tenant in the first 4 months of a tenancy, unless it is a particular type of tenancy (a replacement or periodic tenancy).)
11. Have licensed the property if you are obliged to do so by your local authority, and can provide a copy of the licence.
12. Have returned any payments made by the tenant that are prohibited under the 2019 tenant fees legislation, or have otherwise properly dealt with them.

Failure to ensure all the requirements are met will invalidate a section 21 notice. Note that proceedings for possession cannot start more than six months after the section 21 notice is served.

Bringing the notice to the tenant’s attention

The tenancy agreement may contain provisions for how the notice should be sent or otherwise brought to the tenant’s attention. Equally, the law provides certain provisions. Again, seek legal advice before serving any notice.

Some tenants will vacate the property after being served with the notice. If they don’t, after the relevant notice expires, a landlord can issue a claim for possession (normally in the county court), relying on either the section 8 or section 21 notice.

Claim for residential property possession

Standard procedure (following a Section 8 Notice)

Certain information and documents must be provided to the court in the claim form and ‘particulars of claim’ (documents needed to issue court proceedings). Once the court has issued the claim, it will be sent back indicating a date for the possession hearing. This is usually within 6 weeks but is subject to the tenant’s local court processing times. The defendant has 14 days to put in a defence at court, from the date the claim form was received.

Possession claim hearings

Standard possession claims are always listed for a hearing, regardless of whether the tenant responds to the possession claim; attendance at the hearing by a legal professional is mandatory.

The first hearing is typically 5 to 10 minutes long. If the defendant has not filed a defence, or their defenced fails to show a genuine dispute on substantial grounds, the judge will normally determine possession there and then.

If the defendant files a defence which the judge is concerned about, the judge may adjourn the hearing to a later date.

Where possession is awarded, it is usually awarded within 14 days, save for where exceptional hardship is pleaded. In this situation the court may order a discretionary extension of up to 6 weeks to vacate the property.

The judge will also make an order known as a ‘money Judgment’, for the arrears at the time of the hearing, plus a daily rate until possession is given.

Accelerated procedure without a hearing

A quicker process is when the tenant does not file a defence within 14 days of the claim form being served. In this situation, the landlord may request an order for possession without the need for attending court.

What if the tenant doesn’t leave?

If the tenant stays in the property beyond the date for possession specified in the court order, the landlord must apply for a warrant for possession. This allows a bailiff to enter the property and evict anyone found there. The warrant will specify a date and time for the warrant to be ‘executed’, that is, when the property will be given back to the landlord. The landlord needs to arrange for a locksmith to meet the bailiff at the property to change the locks following the eviction.

Can you help me get my property back?

Yes, is the short answer. We work with landlords to recover possession of residential property, whether a single property or multiple properties in a property portfolio.

We offer fixed fee options so that you know what the process is going to cost, and can be reassured that the correct process is being followed. We can send you a checklist and landlord questionnaire, meaning all documents are on record and we can swiftly move forward with recovering the property.

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