Property Possession Claims
“Are you one of the lucky ones?”
One of our luckiest clients had a property that was rented out to a succession of tenants for over 46 years without any need to take possession proceedings against any of the tenants during that time.
However, when that run of good luck came to an end, he contacted us and we were able to obtain vacant possession of the property for him using the Accelerated Possession Procedure.
When possession of a property needs to be obtained, there are two ways of doing this:
Accelerated Possession Procedure
The accelerated possession procedure can only be used where a Section 21 Notice has been served in accordance with the Housing Act 1985. The landlord does not have to give any reason as to why possession is being sought but only needs to give 2 months’ notice.
There are two disadvantages with this procedure. The first is that the Section 21 Notice cannot be used to terminate the agreement before the end of the fixed term. Alternatively if the fixed term of the tenancy has already come to an end and the tenant is occupying on the basis of a periodic tenancy, say on a monthly basis, then the two month notice can be given at any time.
The only point to bear in mind with a periodic tenancy is that the notice period must end on the last day of a period of the tenancy which is after two months from the date that the Notice was served.
It is very important to get the expiry date of the notice period correct, otherwise the Notice could be invalid.
There are a number of advantages to using the Accelerated Possession Procedure. The first is that although there is the initial two month delay whilst the landlord waits for the Section 21 Notice to expire, the accelerated possession procedure is normally quicker than the normal procedure. This is because the application is considered by the court on paper, normally without the need for a court hearing. The court will only require a court hearing to be held if there is any discrepancy in the paperwork provided by the landlord or if any points are raised in the defence by the tenant which the court requires evidence to be heard from the parties.
The second advantage is that the costs are generally lower than the normal possession procedure. This is because there is usually no need for attendance at a court hearing.
The costs also tend to be lower because there is no real opportunity for the tenant to dispute any rent arrears – since no rent arrears are being claimed.
one of the disadvantages of the accelerated possession procedure is that it is only for the possession claim and as such, if the landlord wants to pursue a claim for rent arrears, a separate claim has to be issued (usually just after the Possession Order has been granted and before the tenant has been evicted).
However, in a lot of cases, it is not cost effective to pursue the tenant for rent arrears because the tenant does not have the income or assets against which a judgment could be enforced.
In addition, in most cases the amount of the rent arrears are below the small claims limit of £10,000. This means they are dealt with in the small claims track which has a rule that even if solicitors are instructed to represent a party and that party wins, the court does not have the power to order the losing party to pay the winning party’s costs. Some landlords decide to issue a claim using the small claims track and pursue it personally since the small claims track is designed to be used by individuals acting in person.
Normal Possession Procedure
Before the normal possession procedure can be commenced, a Section 8 Notice has to be served on the tenant. The Section 8 Notice details the rent arrears or other breaches of the Tenancy Agreement upon which the landlord is entitled to bring the Possession Claim. In most cases it is rent arrears. Under the normal possession procedure, the claim submitted to the court is for (i) a Possession Order and (ii) a judgment for the amount of the rent arrears due to the landlord.
This allows the landlord to obtain the Possession Order and a money judgment for the amount of the rent arrears at the same time.
In the Normal Possession Procedure, the court deals with the matter by way of one or more court hearings. In the circumstances, although the Section 8 Notice for the rent arrears only requires a notice period of 14 days before court proceedings can be commenced, it can be slower than the Accelerated Possession Procedure because of the fact that the landlord may have to wait several weeks or months for a hearing date. In addition, it is unlikely that the court will be able to deal with everything at the first hearing so there will be a further delay whilst waiting for a second or possibly third hearing to deal with the matter.
As the matter is dealt with by way of court hearings rather than the court simply considering the papers sent to it, the costs are greater than using the Accelerated Possession Procedure. This is because of the additional costs of preparing for the court hearings and the cost of barrister’s fees for attending the hearing or hearings.
A major disadvantage with the Normal Possession Procedure is that there is a risk of the tenant making a disrepair claim and/or disputing the amount of the rent arrears. If this occurs then the costs and time required to obtain the Possession Order can increase substantially.
Apart from dealing with the court proceedings for possession, we can also advise as to the correct type of notice to serve. For example whether you should be using a notice under Section 8 or Section 21 of the Housing Act 1988.
Whether you are a landlord with one property or dozens of properties, we have the specialist expertise to help.