There will come a time when a landlord needs to regain possession of a rented property, either because a fixed-term tenancy has come to an end, the tenant has breached the terms of their tenancy agreement, or the landlord wishes to take back the property for another reason.
How the landlord commences gaining possession of a privately rented property will depend on whether the landlord completed all their legal obligations at the commencement of the tenancy, the terms agreed to in the tenancy agreement and whether the fixed term tenancy has ended.
What are a landlord’s legal obligations at the commencement of a tenancy with regards to gaining possession?
When a new tenancy begins for a privately rented property, the agreement should outline what will happen in terms of possession of the property when the fixed term ends, or if the landlord wishes to regain possession before the end of the tenancy on either a fixed term or a periodic tenancy.
If a landlord fails to comply with their legal obligations at the commencement of a tenancy, they may encounter difficulty when attempting to end the tenancy on their terms later on. The Housinq and Development section of the Deregulation Act 2015 imposes certain requirements on a landlord. If those requirements have not been complied with, a Landlord is prevented from serving a valid section 21 notice.
Legal Requirements
The Landlord must provide the following to the tenant:
An Enerqy Performance Certificate:
A Gas Safety Certificate;
A copy of the current version of the ‘How to Rent’ Checklist;
If a deposit is taken, it is secured in a scheme and the ‘prescribed information’ provided to the tenant within 30 days;
If a landlord is in breach of the above requirements, they may not serve a valid section 21 notice.
Health and Safety and Retaliatory Eviction
A Landlord must also ensure that the property is clear of Housing Health and Safety Rating System hazards and that any hazards identified, are swiftly dealt with.
If a ‘relevant notice’ is served following an inspection by the local council, a valid section 21 notice may not be given within 6 months beginning with the date of service of the ‘relevant notice’, or where the ‘relevant notice’ has been suspended, within 6 months beginning with the day on which the suspension ends.
Section 21 Notices
A section 21 notice, also known as an outright possession order, can be used to evict a tenant after the fixed term tenancy ends or during a periodic tenancy (once a fixed term tenancy ends it becomes a rolling periodic tenancy, unless a new tenancy agreement is entered into).
A section 21 notice must give a tenant at least 2 clear months in which to vacate from the date of service of the notice.
When serving a section 21 notice, a Landlord is not required to provide grounds, or a reason for seeking possession, unlike the requirements of a section 8 notice (see below). Section 21 is a no-fault notice for seeking possession; there doesn’t need to be a fault on the part of the
Should the tenant fail to move out by the date stated in the section 21 notice, court proceedings using the accelerated possession procedure, can be sent to the county court for issue.
Accelerated possession proceedings
The court fee for issuing a claim for possession using the accelerated procedure is E355. A Judge can make an order for possession without a court hearing, which means that this process is usually much quicker than applying for a standard possession order (which is the process that is followed where a section 8 notice is used). A Landlord using this procedure can claim for possession QLJ_Y. If a Landlord seeks to recover rent arrears, then a separate money claim can be brought to seek a Judgment from the court for the unpaid rent.
An order for possession must give the tenant a minimum of 14 days in which to vacate, unless the tenant has raised ‘exceptional hardship’ as an issue, in which case the Judge can extend the date for possession up to a maximum of 6 weeks. Exceptional hardship is not defined by law. It is at the Judge’s discretion whether the tenant will suffer exceptional hardship depending on the facts and circumstances of the particular case.
Warrant of possession
A warrant of possession can be issued by the court at the landlord request if the tenant refuses to leave the property by the date stated in the court order for possession, or the tenant breaks the terms of a suspended order for possession. The landlord and tenant will be sent the warrant for possession with a date confirming the bailiff appointment. If the tenant remains in occupation at the date of the bailiff appointment, the bailiff can evict the tenant and obtain lawful possession.
Section 8 Notices
Should a tenant break the terms of their tenancy agreement, or a Landlord has failed to comply with the legal requirements (as mentioned above), a section 8 notice may be used to seek possession of a rented property.
A section 8 notice is a pre cursor to issuing proceedings for possession. The notice must provide a date confirming when court proceedings will begin. This date must be at least 14 days after service of the section 8 notice.
Unlike a section 21 notice, the landlord must rely on grounds stated in schedule 2 of Housinq Act (1988) One of the most common grounds for serving a section 8 notice is ground 8 in schedule 2, where the tenant must be in at least 2 months of rent arrears. The ground(s) relied upon must be correctly identified in the section 8 notice and failure to do so could render the notice invalid.
After the date given in the section 8 notice, standard proceedings for possession should be brought. With section 8, a landlord can claim for possession and rent arrears as part of this process.
Standard proceedings for possession can be lengthy and usually involve the exchange of documents, witness evidence and a report from an expert, if the tenant has alleged the property is in disrepair in their counterclaim, for example.
There are a number of pitfalls when seeking possession following service of a section 8 notice:
A landlord must go to court to obtain possession and this is by way of the standard process not the accelerated procedure used with section 21;
The tenant can defend and counterclaim against the landlord. The most common counterclaims filed by tenants are for the landlord’s failure to secure a deposit and a claim for disrepair of the property (see below);
The possession process can become a very costly and time consuming one.
Disrepair
Disrepair can refer to numerous issues within a property that make it unsuitable for occupation, such as; mould, damp, leaking water, a problem with the supply of hot and cold water and a lack of ventilation or natural light, by way of example. There can be contention over whether the landlord or tenant is responsible for allowing the property to fall into the state of disrepair and an expert surveyor may be required to provide an opinion on whether the property is in disrepair and/or is unfit for human habitation.
A Judge could make an order that the landlord pay damages to the tenant if a claim for disrepair is made out.
Warrant of possession
If, following an order for possession, the tenant does not vacate on or before the date given in the possession order, a landlord will still have to send a Request for Warrant of possession to seek the assistance of a bailiff to lawfully obtain possession.
Agreeing to surrender tenancy with the tenant
An alternative to serving notice seeking possession of a privately rented property is to agree to surrender the tenancy with the tenant. A surrender can terminate the tenancy at the agreed date, whether it is periodic or fixed-term, and can be before the end of the original fixed term.
When negotiating a surrender of the tenancy, the landlord must ensure a written agreement is drawn up that states that the tenant is to surrender the tenancy upon a fixed date, along with any other agreed terms and conditions, which both parties must sign. This is known as an express surrender.
In order to negotiate a tenancy surrender, a landlord may have to pay the tenant a sum of money as an incentive to gain possession.
The correct method of gaining possession of a rented property depends on a number of factors, such as whether the tenancy agreement has been breached, whether the tenancy has ended, and whether the landlord has complied with all legal requirements.
If you require assistance with gaining possession of your privately rented property, please get in touch with Rhoda Honey, a Solicitor in the Dispute Resolution Team at Kitsons LLP, who will be happy to help.
