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Regaining Possession of Residential Property From Tenants - Guide for Landlords

10 October 2020

The Housing Act, 1988 sets out two distinct procedures for landlords to regain possession of their residential property from tenants. The purpose of this article is to sketch out the legal framework and highlight key concepts to assist landlords in this sometimes contentious process.

If a tenant does not comply with a notice and does not vacate the property by the set date the only option is to bring an application to court in what is known as a “possessory action”. The order granted by a court in this type of case will direct the tenant to vacate by a certain date failing which a bailiff will be entitled to evict them from the property. It has never been the law that a landlord is permitted to take the law into their own hands by locking out a defaulting tenant or otherwise evicting them from a property.

The process for regaining possession starts with notices delivered to tenants either in terms of section 8 or section 21 of the Housing Act. As there is always a risk that a matter may end up in court it is vital that landlords adhere to the strict letter of the law when issuing these notices. If there is a defect in the procedure this may result in a court adjourning an otherwise good claim or dismissing the action.

Section 8 notice

The section 8 procedure is based on fault. A landlord would use this section if a tenant was in default of their obligations in terms of their lease agreement. The Housing Act sets out 21 grounds which would support a claim for a possessory order. The most obvious one is rent arrears. Please be aware that before issuing a section 8 notice for rent arrears, the tenant must be at least two months’ rent in arrears at the time of the notice and must still owe two months’ at the time of the hearing. Other grounds include:

  • Tenants damaging the property;
  • Landlord plans to redevelop property;
  • The tenant committed a serious crime on the property

Grounds 1-8, if established by a landlord, make it mandatory for a court to grant a possessory order. These grounds include substantial arrears, where the landlord intends to reside in the property as owner/occupier or where the tenant has died and there is no successor in title.

The remaining grounds confer a discretion upon a court to grant the possessory order in circumstances where it believes it is reasonable to do so. These grounds include persistent late payment of rent, breach of an obligation in the tenancy agreement or nuisance.

The contents of the section 8 notice

The notice must set out the following information:

  • The grounds for regaining possession;
  • A clear statement that the landlord intends instituting action to regain possession;
  • The date upon which the proceedings will commence.

If the tenant has not vacated the premises by the date stated in the section 8 notice a landlord will be able to approach a court for a possessory order. It is important to state clearly which grounds you are referring to and make sure that you calculate the dates correctly. For instance, if an owner wishes to regain possession for the purposes of residing in the property the notice period is two months whereas if the lease is being terminated because of a false statement made to the landlord the notice period is two weeks.

Section 21 notice

This is a useful section for a landlord because it is not necessary to establish any kind of fault on the part of the tenant. It applies to circumstances where an assured shorthold tenancy has expired or is about to expire. A landlord wishing to regain possession has to give two months’ written notice of their intention to regain possession. If the tenant does not vacate the landlord may approach a court for a possessory order.

Contents of a section 21 Notice

The notice must state:

  • Landlord requires possession of the property (a reference to section 21 Housing Act is not mandatory but it would be useful to remove all doubt);
  • The date upon which possession is to be returned.

If the tenant does not vacate by the date stated in the letter the landlord may approach a court for a possessory order. As with section 8 notices, it is vital that the two month notice period is calculated correctly. If in any doubt err on the side of caution and add a few more days rather than risk the notice being found defective.

Defences to section 21 notice

Section 21 places a great deal of power in the hands of a landlord. It effectively allows a landlord to regain possession through no fault of a tenant. It is for this reason that section 21 imposes heavy obligations on a landlord who wishes to use this accelerated procedure. A landlord will not be permitted to utilise the accelerated procedure in circumstances where:

  • the tenancy began less than 4 months before the date of the Notice;
  • the Landlord did not provide the tenant with a valid energy performance certificate prior to the commencement of the tenancy;
  • the Landlord did not provide the tenant with a current gas safety certificate prior to the commencement of the tenancy;
  • the Landlord has not provided the tenant with a copy of the most recent gas safety certificate;
  • the Landlord did not provide the with a copy of the publication “How to rent: the checklist for renting in England” published by the Ministry of Housing, Communities and Local Government;
  • the local authority has served an improvement notice or an emergency remedial action notice in relation to the property under the Housing Health and Safety Rating System (HHSRS) within the last 6 months;
  • the tenant made a claim against the landlord in terms of the Homes (Fitness for Human Habitation) Act 2018 before service of the Section 21 Notice which complain was not properly dealt with and, after service of the section 21 notice, the local authority serves a notice under HHRS;
  • if the landlord retains unlawfully charged fees or holding deposit as contemplated in Tenant Fees Act, 2019.

Possible changes to section 21

The government, as part of its overall policy goal to introduce “a package of reforms to deliver a fairer and more effective rental market” has indicated that it intends to abolish section 21 while at the same time strengthening the rights of landlords to regain possession for their property when they have a valid reason to do so. In effect, the “no-fault” possession procedure will no longer be available to a landlord. The changes are incorporated in the Renters’ Reform Bill which is before the house but there does not appear, at time of writing, to be a timetable for its progression.

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 Fionan Foo or write to us using the contact form below.

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