Landlords often wish to regain possession of their let residential property. A landlord is compelled to do so in the circumstances where the (i) tenant is in arrears of rent, (b) the tenant has breached other terms of the tenancy agreement e.g., caused it to fall into disrepair or unlawfully sublet it, or (c) the landlord simply wants to sell the property. You may not be able to simply recover the possession by re-entering your property and changing the locks. If you did, the tenant would have a strong claim against you for breach of the terms of the tenancy; namely, “the covenant (agreement) for quiet enjoyment”, and/or unlawful eviction and harassment. This could lead to a damage claim and/or possibly a criminal conviction.
With this post, we hope to provide information and direction on how to obtain possession of a residential property when a tenant has defaulted on their rent payments.
In order to begin possession proceedings, several steps must be followed. As a result, a landlord needs to be aware of these to properly comply when repossessing a residential property. If you don’t, you might be accused of harassing your tenants or illegally evicting them.
As a landlord, you do not want an additional legal headache on your head which comes with repossession of the property. So, you’d want to consider discussing with your tenant before evicting your tenant and seeking possession of your property about what are the reasons for arrears and how the tenant may try to clear them.
For example, a landlord and tenant could try to agree on a realistic payment plan. If the tenant receives Universal Credit or Housing Benefit these payments can be paid directly to the landlord. This is termed ‘managed payments’.
If you’re left with no choice and repossession is the only way out, then you must adhere to all the procedures. The type of procedure to be used depends upon the type of tenancy agreement in place as well as the specific terms detailed within it. The main types of tenancies considered below are |
Tenancies with an assured shorthold can be either periodic or fixed term. Because the former has no set expiration date, it continues week by week or month by month. The latter, on the other hand, does have an end date because it is fixed for a specified period of time. To take ownership of a property with an assured shorthold tenancy, follow the steps detailed below.
This allows a landlord to repossess a property ‘within the fixed term’. When issuing a Section 8 notice, the terms of the tenancy that have not been upheld must be clearly stated on the notice. This could be because of a late rent payment, property damage, or antisocial behaviour by the tenants toward their neighbours.
A Section 8 notice can be issued for one of 17 reasons. The first eight causes are mandatory grounds, which means that if the reasons stated are valid, the court will grant possession to the landlord upon hearing the case. The remaining nine grounds are discretionary, meaning that the Court can decide whether or not to give possession.
The three most commonly used grounds for a Section 8 notice are grounds 8, 10 and 11.
In addition to detailing a valid reason, a Section 8 notice must contain – the landlord’s name, address of the property in question and the end date of the notice. If the details are not correct or a valid reason has not been given the tenant has a right to challenge the notice.
A Section 8 notice used to have to give at least two months’ notice but since COVID-19 the timescales have changed |
When the terms of a tenancy are not followed, a landlord can use a Section 21 notice to repossess the property. In England, a Section 21 notice can be sent using Form 6A or written by the landlord if the lease began or was renewed after September 30, 2015. In Wales, a landlord must give notice in writing that an eviction notice is being issued under Section 21 of the Housing Act 1998.
The notice required for a Section 21 notice was a minimum of two months, but since COVID-19 this has changed |
The notice required for ‘contractual’ periodic tenancies is different and varies between England and Wales.
It is important when seeking possession that a landlord retains proof of the date when a Section 21 notice was given. Evidence of the Section 21 Notice can either be given by stating on the notice “served by [your name] on [the date]” or by completing a certificate of service (Form N215).
There are circumstances where a Section 21 notice cannot be used, and these differ slightly between England and Wales.
If the tenants do not remove the property by the deadline indicated in Section 8 or Section 21 notice, the landlord may seek a court order for possession.
When rent is owed, a standard possession order should be sought, but if this is not the case, an accelerated possession order should be sought.
Certain leases and licences do not require the official procedure outlined above in order to obtain possession, such as assured shorthold tenancies. For example, |
You may be regarded as an ‘occupier with basic protection’ for certain forms of tenancies and licences, and you may not need to go to court or provide the renter written notice. Instead, only ‘reasonable notice,’ which is commonly deemed to be the timeframe of their rental payments, such as a week’s notice for weekly rental payments or a month’s notice for monthly rental payments.
Where a tenancy has been running from before 27th February 1997. The processes for evicting tenants to gain possession of a property are different and vary between England and Wales.
In assured tenancies, the tenant must be served with a notice on a specific form that states the reasons for eviction as well as when court action may begin. The duration of notice necessary depends on the basis for eviction, which can range from 14 days to two months.
The reasons might be given on either mandatory or discretionary grounds, and any court action taken in response to the notice must occur within 12 months of the date of the notice. Here are some examples of eviction reasons that fit under these categories. The landlord can go to court after receiving a notice, and if the court agrees to the landlord acquiring possession of the property, the former can issue a possession order to the tenant.
When a court issues a possession order to the landlord on either mandatory or discretionary grounds, the landlord can take possession of the property.
To be stated as mandatory grounds, the tenant must have been advised in writing before the tenancy began that the grounds specified as mandatory could be used to remove the tenant.
When a landlord uses discretionary grounds, it is up to the court to determine if possession is a reasonable step before issuing the order, and they can consider a variety of factors, including the tenant’s circumstances.
Using both court-based enforcement and common law remedies we can help you tackle a range of situations to enforce your court order for possession and remove non-paying tenants from your property. Our comprehensive services are designed to help on every facet of getting back your property and keeping it secure.
To instruct Shergroup Enforcement for repossession order of your rented property, visit our website at www.shergroup.com. Use our easy-to-complete online form and payment system to initiate the process. Make sure to scan and upload a copy of your possession order so that we can review the terms and ensure all necessary requirements are met for accessing our High Court Enforcement service.
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Last updated | 19 July 2023
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