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Possession Actions for Residential Property

Background: 

Most landlords letting residential property will be aware that tenants have important rights which prevent them being evicted or unlawfully harassed by a landlord.   With the exception of certain specific categories of lettings, it is a legal requirement that a landlord obtains a court order before he can enforce any right to possession of or re-entry to the property.  The two common exceptions are properties let as a holiday letting, and properties where the landlord is resident in the same property as his tenant.  Except in these latter instances, a landlord who evicts a tenant without first obtaining a court order is committing a criminal offence and heavy penalties apply.

There are two main routes for obtaining possession of assured and assured shorthold tenancies:

The purpose of this factsheet is to briefly explain the routes available to the landlord and the general procedure for starting possession proceedings.

Assured and Assured Shorthold Tenancies: 

If the tenancy is an assured shorthold tenancy, then the landlord has a right to possession at the end of the tenancy under section 21 of the Housing Act (the ‘section 21 route’).  Section 8 does not apply to these cases (unless there are other grounds such as rent arrears) and you should use the section 21 route (see Letting Factsheet 21)

Where a landlord wishes to get possession from an assured (or assured shorthold) tenant before the fixed term has come to an end (e.g. due to default by non-payment of rent), he must serve notice of his intention to seek possession before possession proceedings can be commenced.  This procedure and notice operate under section 8 of the Housing Act 1988, and for this reason, we refer to it as the section 8 route and section 8 notice respectively.

Briefly, the requirements of section 8 are:

  • the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time-limits prescribed in the Act and stated on the notice
  • the notice must be given in the prescribed form – available from legal stationers, or from our website
  • the notice must specify grounds why the landlord requires possession.

The Act provides 17 grounds which a landlord may use to recover possession under section 8.  The landlord is required to specify in the notice which ground he intends to use, and also to give particulars of the ground which applies, to support his claim.

Where both routes apply (say, for example, where the tenancy is at an end and there are also rent arrears), then the section 21 route is generally preferred as it is simpler and often quicker.

Common Law Tenancies: 

Where the tenancy is a common law or contractual tenancy (e.g. a residential tenancy granted to a company), then a different set of notice requirements will apply.  It will, in many cases, be necessary to serve a notice to quit on the tenant before a possession action can be commenced.  There are different rules for service of a notice to quit (explained further in our Possession Pack) and the notice must be served in the prescribed form.  Standard forms are available from legal stationers or from The Letting Centre.

Tenant Default: 

Generally, the section 8 route is used where there is some default on the part of the tenant.  The most common type of default during the term of the tenancy will be non-payment of rent, but any breaches of the terms of the tenancy agreement can also lead to possession proceedings (e.g. damage to the property, nuisance to neighbours etc.) using this route.  The court will require that the landlord, or his agent, is able to show adequate evidence or proof of the default (e.g. by supplying a schedule detailing the rent arrears) before it will order the tenant to move out of his rented home.

It is important, therefore, when using the section 8 route, for the claimant to understand clearly the different grounds and which will apply.  The Housing Act 1988 defines 17 grounds under which a landlord may apply to the court to bring the tenancy to an end.  Some grounds require that the court automatically award possession if the ground is proven, whereas, in others, the court may exercise its discretion.  The different grounds are explained in greater detail in Letting Factsheet No 8, and in the Letting Centre Possession and Rent Arrears Pack.

The Importance of Notices: 

Whichever possession route is adopted, the landlord is normally required to serve a notice on his tenant of his intention to bring possession proceedings before court action can be started.  The notice varies depending on the type of tenancy, the route adopted (section 8 or section 21), and the grounds used (if section 8 route is adopted).

For example, if the landlord requires possession at the end of a fixed term tenancy (under section 21), he is required to serve two months’ notice on the tenant.  Only when the notice has expired can he start possession proceedings.

The notice must be served on all the tenants.  It may be given to them personally, or sent to them by post.  If serving by post, it is recommended to serve the notice by recorded delivery so that service can be proven. Standard forms are available from The Letting Centre and other legal stationers to help ensure that they are valid and contain the required information.

Possession Proceedings: 

Possession proceedings are commenced by completing the appropriate forms and returning them to the county court together with the appropriate court fee.  There are two main types of possession action.  These are:

  • Standard procedure
  • Accelerated Possession Procedure (applies to section 21 route only)

Court forms are obtained from the local county court or from the Court Service website. Under the standard procedure, the court will issue a summons to the tenant(s).  Depending on the efficiency of the local court, it generally takes about 2 to 3 months to obtain a hearing date.  The tenant(s) are required to attend and under an informal procedure, the judge will firstly ask the claimant (landlord) to explain the possession claim.  The defendant (tenant) will then, if present, be asked if s/he submit any defence against the claim.  If successful, the judge will award a possession order to the landlord, plus a judgment for any rent arrears outstanding, the court fees and any other reasonable costs claimed by the landlord.  The tenant is then required to leave the property on or before the date given on the possession order. 

The Accelerated Possession Procedure (APP) is a paper-based procedure so normally this is quicker and there is no requirement for a hearing.  However, any rent arrears must be claimed using a separate Small Claims action. Standard forms, full guidance and case examples relating to the different routes and court procedures are provided in the Letting Centre Possession and Rent Arrears Pack.

You can now make or respond to certain types of possession claim on the internet using ‘Possession Claims Online’ (PCOL).  It is suitable for possession claims that are for arrears of rent including interest and costs. It can only be used where there is an address for service in England or Wales and where the claimant can provide a postcode for the property to be recovered and has an email address.  PCOL allows access to essential court forms online to make, issue, view and progress a possession claim electronically.  The system automatically allocates a hearing date at the point of issue and the site includes postcode recognition software which automatically ensures the case is assigned to the correct court for the property to be recovered.

Sources for Further Information: