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Most residential tenancies or licences cannot be brought to an end without an Order for Possession from the court. A Landlord cannot simply re-enter the property and carry out an eviction.
A Landlord must be careful not to commit a criminal offence under the Protection from Eviction Act 1977. Before seeking to recover possession, careful consideration must, therefore, be given. T G Baynes are here to help with this often complex area of law.
Most residential properties will be let under an Assured Shorthold Tenancy. These tenancies are protected under the Housing Act 1988 (as amended by the Housing Act 1996). This is distinct from Tenants who are protected under the Rent Act 1977 or who have long-term residential Leases. This article deals with the position in relation to Assured Shorthold Tenancies.
If a property is let to an individual as a separate dwelling to occupy as his/ her only home, and that tenancy was entered into on or after 28th February 1997, then (save for a few limited exceptions), it will be an Assured Shorthold Tenancy. This tenancy must be granted for a minimum term of at least six months, and there is no power for the Landlord to determine the tenancy at any time earlier than six months from the beginning of the term.
Termination before the fixed term has expired:
A Tenant is entitled to security of tenure for the fixed term of the tenancy. A Landlord may only seek to bring the tenancy to an end during this term if he can satisfy either one or more prescribed statutory grounds for possession at Schedule 2 of the 1988 Act, or if the tenancy includes an early termination provision permitting the Landlord to terminate after the first 6 months.
There are two categories of ground at Schedule 2 to the 1988 Act: those where the court must make an Order for Possession (the mandatory grounds), and those where the court has a discretion whether or not to make an Order for Possession (the discretionary grounds). Any grounds relied upon must first be specified in a Notice of intention to commence possession proceedings served on the Tenant. The notice period given will depend on the nature of the grounds given. It is important therefore that appropriate advice is obtained. Only if the grounds are established will, or may, the court makes an Order for Possession. The most common ground pleaded for possession is where the Tenant has failed to pay rent.
Termination after the fixed term has expired:
Where a Tenant remains in occupation after the fixed term has come to an end, then the Tenant will usually do so as a Statutory Periodic Tenant. The Landlord will, however, be able to ask for possession after the fixed term has expired by serving a Notice Requiring Possession under Section 21 of the 1988 Act. Generally, this requires the Tenant to be given not less than two months notice. The exact notice period required will, however, depend on whether the tenancy remains in the fixed term or whether it has become periodic.
There are strict requirements that must be followed to serve a valid Section 21 Notice, and it is important that appropriate advice is obtained before doing so. In particular, if the tenancy was granted on or after 1st October 2015, then there is a prescribed form for the Notice and a valid Notice cannot be served unless or until the Tenant has been given certain information, including a Gas Safety Certificate, Energy Performance Certificate and the Government’s ‘How to Rent’ booklet. There is also a bar to serving a Section 21 Notice within the first 4 months of the commencement of the tenancy; where the property is subject to Licensing, but no such Licence has been granted; where Deposit Protection regulations have not been fully complied with; and where there is an outstanding complaint to the Local Authority about the condition of the property. These requirements will apply to all Assured Shorthold Tenancies from 2018.
Possession Proceedings:
Once the appropriate Notice has expired, a claim for possession will need to be issued in the County Court local to the property. Depending on the type of Notice relied upon, a Possession Hearing may, or may not, be required.
A standard Order for Possession is 14 days. If possession is granted on a mandatory ground for possession or under Section 21 of the 1988 Act, then Section 89 of the Housing Act 1980 provides that the Court can only postpone the date for possession by up to a maximum period of 42 days from the date the Order is made where it is satisfied that to require the Tenant to vacate the property within the standard 14 days will cause ‘exceptional hardship’.
If a Tenant fails to vacate the property on the date ordered for possession, then the Order for Possession is enforceable by a Warrant of Possession in the County Court and/ or by a Writ of Possession in the High Court. A Landlord must apply for a Warrant/ Writ before he can get the property back.
Whatever the reason for a Landlord wanting to recover possession, the procedure can be quite complex and legal advice should always be sought. Teresa Johnston specialises in Property Litigation and should be able to help you. If you are a Landlord and require assistance with such matters, then please do not hesitate to contact T G Baynes on 0208 301 7777 or alternatively e-mail info@tgbaynes.com.
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