Residential possession proceedings and actions against tenants or squatters
Historically, it was thought (going back to the 1950’s or 1960’s) that Landlords had the upper hand when renting our residential properties, and there were many well publicised cases of unscrupulous landlords. The position now is largely the opposite. With residential property, the old adage that “possession is 9/10 of the law” generally applies, and any kind of occupation, including squatting, results in the Landlord generally having to incur time, cost and aggravation to obtain possession of his or her property, and the penalties for failing to use the correct legal process are severe, potentially including criminal as well as civil law liability.
In almost all situations relating to residential property it is a legal requirement that a landlord obtains a court order before he can enforce any right to possession of or re-entry to the property.
Residential tenancies are highly regulated by statute, so it is important to be aware that this often means that whilst a landlord may persuade a tenant to sign a tenancy agreement with many clauses which are favourable to the Landlord, the statutory rules will often override such agreements. There are two main routes for obtaining possession of assured and assured shorthold tenancies (the standard types of residential tenancies) under the Housing Act:
* section 8 route (see below)
* section 21 route (see below)
Assured and Assured Shorthold Tenancies:
If the tenancy is an assured shorthold tenancy, then the landlord has a right to possession at the end of the tenancy under section 21 of the Housing Act (the ‘section 21 route'). This option can be used in conjunction with a court application under Section 8, but there are risks with the section 8 route which do not apply to the section 21 route 9as long as the procedure and paperwork are correctly applied under the section 21 procedure)
Where a landlord wishes to get possession from an assured (or assured shorthold) tenant before the fixed term has come to an end (e.g. due to default by non-payment of rent or other ground stated in section 8 of the Housing Act), he must serve notice of his intention to seek possession before possession proceedings can be commenced. Briefly, the requirements of section 8 are:
* the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time-limits prescribed in the Act and stated on the notice
* the notice must be given in the prescribed form - available from legal stationers
* the notice must specify grounds why the landlord requires possession.
The Act provides 17 grounds which a landlord may use to recover possession under section 8. The landlord is required to specify in the notice which ground he intends to use, and also to give particulars of the ground which applies, to support his claim.
Where both routes apply (say, for example, where the tenancy is at an end and there are also rent arrears), then the section 21 route is generally preferred as it is simpler and often quicker.
The Importance of Notices:
Whichever possession route is adopted, the landlord is normally required to serve a notice on his tenant of his intention to bring possession proceedings before court action can be started. The notice varies depending on the type of tenancy, the route adopted (section 8 or section 21), and the grounds used (if section 8 route is adopted).
For example, if the landlord requires possession at the end of a fixed term tenancy (under section 21), he is required to serve two months' notice on the tenant. Only when the notice has expired can he start possession proceedings.
The notice must be served on all the tenants. It may be given to them personally, or sent to them by post. If serving by post, it is recommended to serve the notice by recorded delivery so that service can be proven.
Possession Proceedings:
Possession proceedings are commenced by completing the appropriate forms and returning them to the county court together with the court fee . There are two main types of possession action. These are:
* Standard procedure (section 8 claims)
* Accelerated Possession Procedure (applies to section 21 route only)
Court forms can be obtained from the local county court or from the Court Service website (www.hmcourts-service.gov.uk)
Under the standard procedure, the court will send the issued claim to the Defendant who may seek to raise a defence or counterclaim, and ,many tenants know “the game” and will claim a breach of contract by the Landlord, such as utilities not working, damp or such like, or with the commonly used grounds that the tenant is behind with rent, if the tenant appears to be reducing the arrears before the hearing date, either the ground will no longer apply or the court may postpone possession for a period, giving the tenant further time, during which the tenant may stop paying again !. It can often take 2 to 3 months just to obtain a first hearing date and this can be incredibly frustrating for the Landlord. One of the benefits of the section 8 procedure is that, with a tenant who can pay arrears or has the means to remedy a breach of contract, the court can make financial orders including court fees and legal fees, which will constitute an enforceable county court judgment, as well as making a possession order for the tenant to leave the property on or before the date given on the possession order.
The Accelerated Possession Procedure (APP) is a paper-based procedure, and the key points are :-
* If the tenancy has ended and proper notices have been served on the tenant which have expired and the court paperwork is in order, the court must make an order for possession, so there is certainty.
* If the above applies, there is no need for a court hearing
* The landlord cannot ask for a money judgment as part of the section 21 procedure, and commonly the tenant will stop paying rent, which can leave the Landlord out of pocket for 2 months arrears or more ! (the Landlord can issue separate proceedings for a money judgment but this involves further time and expense)
Darlingtons solicitors are experts in advising landlords on residential possession proceedings and in dealing with this very technical area of law, where, in addition to the law being slanted heavily in favour of the tenant, a technical mistake with the notices, procedure or paperwork, can result in the claim being struck out by the court, and the whole process started again, which can take months. It is vital also to ensure that proceedings are issued in the correct court. We can help, whether you are a Landlord in London generally or in the areas of Edgware, Stanmore, Hendon, Mill Hill, Watford, Harrow, Brent or any area in North London or North West London. Call us now or contact us by email for a no obligation, free initial discussion.
