Landlords may occasionally find it necessary to recover possession of their property from their tenant. As such, the process of obtaining vacant possession of a residential property can often be unfamiliar to landlords. It can be beneficial for landlords to understand the process, so that they know what to expect if they are either dealing with the matter themselves or if they instruct a solicitor to recover possession. The process, which is subject to incredibly stringent rules when it comes to when a landlord can recover possession, may well be about to change. This article intends to give an overview of where we are, and where we expect to be should the proposals from Labour come into effect.
Service of notice
The first step the landlord must take if they require vacant possession of their residential property is to serve a valid eviction notice. If the tenancy is an assured shorthold tenancy ("AST"), a notice pursuant to Section 8 or Section 21 of the Housing Act 1988 (as amended) may currently be served.
Section 21 notice
A Section 21 notice is often coined a "no-fault" eviction notice, as it is not served on the basis of breach of tenancy or fault by the tenant. A Section 21 notice cannot expire before the fixed term of the AST ends, and it must give the tenant 2 months' notice from the date it is deemed served. There are many formalities that must be complied with before a valid Section 21 notice is able to be served and relied upon in Court (if necessary).
However, Labour's manifesto has promised to immediately abolish Section 21 notices, as a key policy under their proposed Renters' Rights Bill. What this means is, a landlord will no longer be able to evict a tenant simply because their tenancy has expired, or because a tenant will not accept a non-contractual rent increase or simply because the landlord isn't generally happy with the arrangement. It is currently unknown how and when they will ban Section 21 notices – however, it appears to be more of a priority for this government, than the last.
Section 8 notice
A Section 8 notice is served on the basis of breach of tenancy, where at least one of the grounds under Schedule 2 of the Housing Act 1988 are satisfied. This notice can be served in the fixed term of an AST, and the notice period will depend upon which ground is being relied upon – these range from immediately to two months from the date it is deemed served. The grounds commonly used relating to rent arrears require that 2 weeks' notice is given from the date the Section 8 notice is deemed served.
To balance out the benefits that banning Section 21 notices give to tenants, Labour plans to create new and expanded possession grounds under Section 8, to make it easier for landlords to recover possession if they need to do so. Such grounds are proposed to include when the landlord is selling or moving a family member into the property and persistent rent arrears. Whilst this does give a more freedom for landlords to sell – it is that much more restrictive than the arrangement that currently exists.
Issuing proceedings
Once a valid notice has been served and has expired and if the tenant is still occupying the property, the landlord can commence possession proceedings in the Courts within the allowed time frames. There are currently two procedures available when issuing possession proceedings. As it stands, a landlord issuing a Section 21 notice could recover possession relatively quickly. However, with the proposed changes, the option to "accelerate" is expected to disappear (more on this below). If a landlord can only rely on the standard procedure using a Section 8 notice, and say if a tenant is in arrears, the landlord could be without rent for some time whilst the matter is resolved.
Accelerated procedure
The accelerated procedure can be used where there is a written tenancy agreement, the claim for possession is based on a Section 21 notice and where the landlord does not wish to recover arrears from the tenant. This route is paper based and judgment is usually made without a hearing, unless the claim is defended.
After the Court has received the claim paperwork, the Court will issue the claim and once issued, the tenant usually has 14 days from the date of service to file a defence to the claim. If the claim is not defended, the landlord can submit a request for judgment, when the Judge will consider the paperwork and decide whether to order possession. If a possession order is made, this will usually give the tenant 14 days to vacate the Property, although it can be up to 42 days.
Once Section 21 notices are abolished by the Labour government, it seems unlikely that the accelerated procedure will continue to be available. It is likely that a transitional period will be introduced to allow any existing Section 21 notices/cases on the accelerated procedure to continue their trajectory, but after that, this process is expected to go.
Ordinary procedure
The ordinary procedure will be required to be used where the claim for possession is based on a Section 8 notice, or when the landlord wishes to recover arrears from the tenant.
After the Court has received the claim paperwork, they will list a hearing to deal with the matter. The Judge will consider the evidence filed at the hearing and decide whether to order possession. The whole process from start to finish can take months, and if at the end a possession order is made, the Court will usually give the tenant 14 days to vacate the Property, although it can be up to 42 days.
Conclusion
The advice to landlords as it stands is to keep tenancy agreements under review, particularly those on rolling/periodic arrangements. If rent is low, and the AST does not provide for rent increases (or minimal increases) landlords may find themselves tied into the terms once the Section 21 procedure is gone.
The Section 21 procedure isn't without its issues and it is not available to all landlords if their paperwork is not in order. Our dedicated possession team can review your tenancy arrangements and advise what processes are available now, and how that will change once the proposals come in. This may assist in deciding whether action needs to be taken in advance of the changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.