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Obtaining Possession of Residential Property: Procedure for Rent Arrears

20 January 2021

This article provides information and guidance regarding the procedure for obtaining possession of residential property where a tenant has fallen behind with their rent payments.

Specific procedures must be adhered to in order to enter proceedings for possession. It is, therefore, important that a landlord is aware of these in order to comply correctly when repossessing a residential property. If not, she could potentially be deemed to be harassing her tenants or evicting them illegally.

Efforts to avoid repossession

Before considering evicting a tenant and seeking possession of a property a landlord may wish to discuss with the tenant what the reasons are for arrears and how the tenant may try to clear them. For example, a landlord and tenant could try to agree on a realistic payment plan. If the tenant is in receipt of Universal Credit or Housing Benefit these payments can be paid directly to the landlord. This is termed ‘managed payments’.

Possession proceedings

Where possession of a property is the only option, there are various procedures for this dependent upon the type of tenancy agreement in place as well as the specific terms detailed within it. The main types of tenancies considered below are:

  • Assured shorthold tenancies;
  • Excluded tenancies or licences; and
  • Assured and regulated tenancies.  

Assured shorthold tenancies

Assured shorthold tenancies may be either periodic tenancies or fixed-term tenancies. The former does not have an end date so are in effect rolling on week by week or month by month. The latter, however, does have an end date as they are set for a specific length of time.

Assured shorthold tenancies require the procedure outlined below in order to gain possession of the property.

1. Issue the tenants with either a Section 21 notice or a Section 8 notice *

* It is also possible to give a tenant both notices.

Section 8 Notice

This allows a landlord to repossess a property ‘within the fixed term’. When issuing a Section 8 notice it must be made clear on the notice the terms of the tenancy which have not been upheld. This could be, for example, that rent is late, damage has made to the property or that the tenants have been antisocial towards neighbours. 

There are 17 grounds on which a Section 8 notice may be issued. The first 8 grounds are mandatory grounds meaning that if the reasons given are valid, the court will give the landlord possession upon hearing the case. The remaining 9 grounds are discretionary where the Court can choose to grant possession.

The three most commonly used grounds for a Section 8 notice are grounds 8, 10 and 11.

  • Ground 8 is a mandatory ground and is used where the arrears of rent are large: for monthly tenancies it must be at least two months of arrears, quarterly/yearly at least three months of arrears and for tenancies where the rent is paid weekly it must be at least eight weeks of arrears. The amount of arrears detailed must be present when the notice is issued as well as when the case is heard in court.
  • Ground 10 is a discretionary ground and no specific amount of rental arrears is required. The amount of arrears detailed must be present when the notice is issued as well as when the case is heard in court. A notice on this ground will likely result in a money order rather than possession of the property.
  • Ground 11 is also a discretionary ground and is used where a tenant is consistently not paying their rent and does not require the amount of arrears detailed to be present when the notice is issued or when the case is heard in court.

In addition to detailing a valid reason, a Section 8 notice must contain: the landlord’s name, address of the property in question and the end date of the notice. If the details are not correct or a valid reason has not been given the tenant has a right to challenge the notice.

A Section 8 notice used to have to give at least two months’ notice but since COVID-19 the timescales have changed:

  • In England, between 26 March 2020 and 28 August 2020, a minimum of three months was required.
  • In England, from 29 August 2020 a minimum of six months is required, although this can be shorter dependent upon the circumstances.
  • For Wales, the six months applied from the 24th July 2020 and where the reason for eviction is antisocial behaviour the period required is a minimum of three months.

Notice required for ‘contractual’ periodic tenancies is different and varies between England and Wales.

Section 21 Notice

A Section 21 notices allows a landlord to repossess a property where the terms of the tenancy have not been upheld. In England, ‘if the tenancy was started or renewed after 30th September 2015’ a Section 21 notice can be given using Form 6A or the landlord can write the notice. In Wales, a landlord must issue the notice in writing detailing that an eviction notice under Section 21 of the Housing Act 1998 is being issued.

The notice required for a Section 21 notice was a minimum of two months, but since COVID-19 this has changed:

  1. In England between 26 March and 28 August 2020 a minimum of three months was required’
  2. In England from 29th August 2020 a minimum of six months is required.
  3. For Wales, the six months applied from the 24th July 2020.

The notice required for ‘contractual’ periodic tenancies is different and varies between England and Wales.

It is important when seeking possession that a landlord retains proof of the date when a Section 21 notice was given. Evidence of the Section 21 Notice can either be given by stating on the notice “served by [your name] on [the date]” or by completing a certificate of service (Form N215).

There are circumstances where a Section 21 notice cannot be used and these differ slightly between England and Wales. For information on these circumstances please visit here.

2.  Applying for a possession order

If the tenants do not then vacate the property by the date specified in the Section 8 or Section 21 notice the landlord can apply for a possession order from the court.

Where rent is owed the correct order to apply for is a standard possession order and where this is not the case it is an accelerated possession order.

3. Applying for a warrant for possession

Where the tenants continue to refuse to leave the property after receipt of a possession order it is possible to apply for a warrant for possession which allows bailiffs to move the tenants on from the property.

Excluded tenancies or licences

There are certain tenancies and licences which do not require the formal procedure as set out above for assured shorthold tenancies require in order to gain possession. For example:

  1. Where a tenant lives in the property with the landlord;
  2. If you pay a high rent of £100,000 or more a year; and
  3. If you are a student and live in university owned halls of residence.

For these types of tenancies and licences you may be considered an ‘occupier with basic protection’ and it may not be necessary to go to court or to give the tenant notice in writing. Instead, only ‘reasonable notice’ is required which is generally considered to be the timeframe of their rental payments, therefore, for example, a week’s notices for weekly rental payments, or a months for tenants who pay monthly.

Assured and regulated tenancies

Where a tenancy has been running from before 27th  February 1997. The processes for evicting tenants to gain possession of a property are different and vary between England and Wales.

Assured tenancies

In assured tenancies a notice must be given to the tenant using a specific form and it must state the reasons for eviction as well as when court action may start from. The reasons for eviction determines the length of notice required which can range between 14 days to two months.

The reasons can be given on mandatory grounds or discretionary grounds; any court action following the notice must take place within 12 months of the date of the notice. Some examples of reasons for eviction falling into these categories can be found here. Once a notice has been given, the landlord can attend court and if the court agrees to the landlord gaining possession of the property the former can issue the tenant with a possession order.

Regulated tenancies

A landlord can gain possession of the property where a court has issued a possession order to the landlord based on either mandatory or discretionary grounds.

For mandatory grounds to be quoted, the tenant must have been informed in writing before the tenancy commenced that the grounds listed as mandatory could be used for eviction. A list of reasons can be found here.

Where discretionary grounds are being used by a landlord it is for the court to decide whether possession is a reasonable step before making the order and when deciding this they can take many things into consideration, including the circumstances of the tenant. A list of reasons for discretionary grounds can be found here.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Caroline Turner or write to us using the contact form below.

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