We have many years’ experience helping private landlords obtain possession of their rented property where:
- the term of the lease has expired
- the rent is not paid
- there is some other breach of the tenancy agreement
Many landlords try to obtain possession themselves and they fail, because this area of law is fairly complex and a mistake can set you back months. That means months with no rental income. As solicitors, we can recover some fees from the tenant and, so long as the tenant can pay, the true cost to you is very modest.
Our skill is in assessing your situation and advising whether your strategy should be to recover possession only, or whether it is going to be cost-effective to seek rent/damages instead of seeking possession, or in addition to seeking possession.
Here are the 4 basic stages:
- Preparation and personal service of a notice to end the tenancy agreement
- Issuing possession proceedings at court
- Obtaining a court order for possession
- Obtaining possession
Most tenancies are now what is called assured shorthold tenancies, and, to recover possession of the property, we will need to serve a notice on the tenants, either a “fault” notice (section 8 notice), where the tenants are in breach of the terms of the tenancy, for example because of unpaid rent; or a “no fault” notice (section 21 notice), which allows landlords to obtain possession after a period of time and the tenant does not need to have breached any terms of the tenancy agreement.
After service of the section 8 notice, the tenant has only 14 days to leave the premises, before the landlord can issue possession proceedings.
The section 21 notice has to give the tenant at least two months’ notice of the landlord requiring possession of the property. It can be in different forms, depending on whether or not the tenancy has yet expired. If the original tenancy has expired, it is essential that the correct date for the tenancy to end is calculated. This is not a straightforward calculation and the consequences for landlords if the date is incorrectly calculated are that the notice will be invalid, and no possession order will be made in possession proceedings based on it. The only solution is that a fresh notice, correctly drafted, is served before fresh possession proceedings are issued, resulting in significant delays for the landlord. Our team is alert to this issue appreciates that the landlord will want to obtain possession as soon as possible. Many tenants leave the property after service of the notice, enabling the landlord to regain possession of the property.
We aim to serve the notice within 48 hours of receiving your instructions. Because tenants often say that there was no effective service and seek to set aside the legal process, we always recommend personal service of the notice. Yes, it costs more, but it is your insurance against issues with service, and it does show a tenant that you mean business.
If the tenant does not leave the property after expiry of the notice, then the next stage is that we issue a claim for possession at the court local to the property, relying on the notice served. It is only extremely rarely the case that a landlord can simply evict a residential tenant and change the locks without a court order.
There are two types of procedures for obtaining possession of residential property from tenants, and the proceedings can be issued online, resulting in a saving in court fees:
The accelerated possession procedure
If possession is sought on section 21 (no fault) grounds, then we can use what is called the accelerated procedure. This procedure is restricted to possession and fixed costs only, and therefore cannot be used in cases of rent arrears or disrepair. With this procedure, after we have issued the possession proceedings, provided that the tenant does not seek to defend the claim, the court will consider the matter on paper alone, without the need for a hearing, which should result in a decision earlier than when using the standard procedure. The tenant can then apply for more time to leave, which can lead to a short court hearing.
The standard procedure
This procedure can be used to seek an order for possession, for payment of the rent arrears and disrepair. Once the proceedings have been issued, the court sets a hearing date, usually 4-8 weeks later. We then arrange either to attend the hearing ourselves, or for agents to do so on our behalf, having first provided the court with the necessary evidence of the tenancy agreement and the rent arrears and/or disrepair. The first hearing is for only 5-10 minutes. If there is no defence, the court will normally make an order for possession at that hearing. If there is a defence which indicates a genuine dispute or a substantial ground for defending the claim, then the court will usually adjourn the case for a longer hearing, usually with orders for the provision of witness evidence and disclosure of documents, following which the court will decide whether to order possession to be given.
If possession is ordered at the first hearing, the date for possession is typically 14 days after the date of the hearing, unless the tenant claims that this would cause him/her exceptional hardship.
Under the standard procedure, you may be seeking an order for the tenant to pay the unpaid rent, usually within 14 days. On the assumption there is a tenancy deposit, we will ask the court to make an order that the deposit may be repaid to you from the scheme towards the unpaid rent and costs.
If tenants have not voluntarily vacated the property by this stage, it is unlikely that they will do so following receipt of the court order to do so. If they do so and hand in the keys to the landlord or the landlord’s agent, then possession can be taken by the landlord. However, because it is not always clear whether they are still in residence, it is usually necessary to apply to the court for a warrant of possession, which results in the court bailiff re-entering the property and evicting anyone found there. This is likely to be between 4 and 8 weeks from the date of the request for the warrant, although this will depend on the bailiff’s workload. The warrant will state the time and date when the bailiff will attend the property. You will need to arrange for someone to meet the bailiff at the property and for a locksmith to attend and change the locks.
It is not that often that a tenant puts forward a genuine and arguable defence to possession proceedings, but there can be tenants who are capable of ‘playing the system’. It will be important for you that we deal with these claims in a proportionate and commercially aware manner. We will need to carry out additional work to the steps set out above, and for this we will charge you at an hourly rate. We will provide you with details of any additional costs that will be incurred once we have established that this will be necessary, and where possible, we shall agree a fixed fee.
Costs recovery – Undefended possession claims
In the vast majority of possession claims, the tenants will fail to defend the claim. If so, landlords are likely to get the property back fairly quickly, so that it can be re-let, providing an income stream again. However, the court rules provide for only limited recovery of costs in undefended possession actions:
Cost to you (inc VAT)
Costs recovery allowed by the court
|Accelerated possession procedure:|
|Court Issue fee||£355.00||£355.00|
|Fixed Costs on Issue||£69.50||£69.50|
|Additional fee if tenant seeks more time to leave owing to exceptional hardship||£120.00||n/a|
|Standard possession procedure (undefended):|
|Court Issue Fee||£355.00||£355.00|
|Fixed Costs on Issue||£69.50||£69.50|
|Preparing evidence for and attending court hearing (Carlisle and West Cumbria)||£157.25||£57.25|
Unless landlords have legal expenses insurance which will cover their legal fees, they are likely to have to finance the possession proceedings themselves with little prospect of recovery of those costs from the tenant. Although you will have a judgement against the tenant for payment of the costs and rent arrears, practically, you may be unable to enforce that judgement. You will remain liable for the court fees and our costs, whether the tenant pays you or not.