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Possession Orders - Residential Property
Issues between landlord and tenant are becoming increasingly common, as individuals decide to rent rather than buy due to the high price of property today and the difficult economic climate. This article concentrates on the options available to a private landlord wishing to evict a tenant.
The law regarding private sector tenants is governed by the Housing Act 1988. There are two options available to a landlord to start repossession proceedings under the Act – serving a Section 8 Possession Notice or a Section 21 Notice to Quit.
(1) Section 8 Possession Notice
To initiate the repossession process the landlord must serve what is known as a Section 8 Notice on the tenant. This informs the tenant that the landlord is seeking possession of the property and the grounds on which repossession is sought. There are a range of grounds available to the landlord, the most common of which is non-payment of rent. There are certain grounds in respect of which the Court must order possession, whereas with others it may exercise its discretion.
The tenant has 14 days to respond. Once this period has expired if the tenant has failed to pay the rent due or to vacate the property the landlord is entitled to issue possession proceedings at Court. The landlord is then required to provide the Court with all relevant information and evidence - for example the tenancy agreement and an up to date arrears schedule - in support of the request for eviction.
The Court will then set a date for a hearing. If at the hearing the Court is satisfied that the landlord is entitled to possession, it will order the tenant to vacate within 14 days. This period can be extended to 6 weeks if it will cause exceptional hardship to the tenant to be evicted sooner.
Serving a Section 8 Notice does not guarantee that the Court will grant a possession order and force the tenant to vacate the property. It depends which grounds are relied upon and the strength of the landlord’s arguments. Further, if the procedure is not followed correctly delays are highly likely to occur and the outcome may be unsuccessful.
(2) Section 21 Notice to Quit
Under Section 21 of the Act the landlord has a legal right to repossess his property at the end of an assured shorthold tenancy. Unlike the Section 8 Notice procedure above, the landlord does not need to provide a reason for wishing to repossess his property at the end of the tenancy agreement. However, a minimum of 2 months’ notice is required. If the tenant does not leave by the expiry date on the notice, the landlord will need to apply to the Court for a possession order.
In respect of both a Section 8 Notice and a Section 21 Notice, after the Court has ordered that the tenant leave, if the tenant fails to vacate within the required period the landlord can instruct bailiffs to evict the tenant.
With regard to cost, the tenancy agreement may permit the recovery of legal costs and interest at a particular rate. If it does not include such provisions, the court will only permit the landlord to recover limited legal costs. Therefore, it is important to make sure that the wording of any tenancy agreement is drafted carefully to protect the landlord in the event of problems with tenants.
We highly recommend that any landlord wishing to utilise either of the procedures outlined above obtains legal advice from our Litigation Department, in order to ensure that matters proceed as smoothly as possible. We also recommend that landlords talk to our Property Department concerning the drafting of relevant clauses in their tenancy agreements.