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Order for Possession Process

The consequences of repossession of the property by the landlord can be substantial and is likely to have a detrimental impact on the tenant’s life and their family, who may be left homeless. Therefore the law on possession is very strict.

One of the many tenant's rights is right of possession of the property they are renting during the tenancy. However, once the tenancy has been terminated, possession returns to the landlord in law, but not necessarily in practice.

Tenants Rights and why your landlord need to get it right with possession notices.

It’s important that a tenant knows and understands the process’s that maybe involved and that they ensure the correct process has been chosen and followed by the landlord as if it is not then the tenant may be able to retain possession and the landlords claim will more than likely be rejected by the courts.

The consequences of repossession of the property by the landlord can be substantial and is likely to have a detrimental impact on the tenant’s life and their family, who may be left homeless. Therefore the law on possession is very strict.

Protection from Eviction Act 1977

It is a legal requirement that a landlord obtains a court order before he can enforce any right to possession or re-entry to the property. Any attempt at eviction without a court order is a criminal offence under the Protection from Eviction Act 1977. This may not apply where the landlord is resident in the same property as the tenant.

Except in these such instances a landlord who evicts a tenant without first obtaining a court order is committing a criminal offence and heavy penalties apply, judges are reluctant to evict tenants and will ensure that landlords have provided detailed evidence as to why a possession order is required.

Reasons for Eviction

These maybe loosely categorised as follows: the tenant is at least eight weeks in arrears with the rent; the tenant has damaged the property; the tenant is a nuisance neighbour; the tenant is otherwise in breach of tenancy;the expiry of the six months' contract.

Section Notices

There are two possible routes for obtaining possession of assured and assured shorthold tenancies through issuing a Section 8 notice, or a Section 21 notice.

If a tenancy is an assured shorthold tenancy, the landlord has a right to possession at the end of the tenancy under section 21 of the Housing Act 1988 (commonly known as the 'section 21 route').

Where a landlord wishes to obtain 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 and/or other breach of tenancy, they must serve notice under section 8 of the Housing Act 1988 (commonly known as the 'section 8 route').

What is the Standard possession procedure?

The standard possession procedure will generally be used where possession is required due to a tenant default such as repeated failure to pay the rent or possession is required during the fixed-term of the tenancy where the accelerated possession procedure would not apply.

Section 8 Route – What the landlord must do

Firstly, the landlord must wait until the date on the section 8 notice has expired. If the landlord does commence proceedings before the notice has expired it will be deemed invalid. The landlord (claimant) will need to complete the correct prescribed forms: a summons for possession of property form and the particulars of claim for possession form. Two copies must be sent to the county court, with the appropriate court fee, together with an extra copy for each defendant.

The particulars of the claim form is used by the landlord to set out the grounds for possession (as specified in Schedule 2 Housing Act 1988) and details of the claim. Upon receipt of the forms the court will list the case for hearing and issue the summons from service on the tenant. The average time between filing proceedings and the hearing date is approximately two months.

Once you as a tenant are served you will then have 14 days from the date of service to file a reply on form. However, in practice this can be done at any time before the hearing. If you don’t understand your rights you must get legal advice from your local housing office, the citizens advice bureau or a solicitor. DO NOT reply on “advice” from friends no matter how well-meaning this may be given. Incorrect advice or lack of attention to being served such a notice may well mean you will lose your home.

The possession case will be heard in court where both the landlord and tenant will be given the opportunity to present their respective arguments in front of the judge. After hearing the case, a judgment will normally be given, and if successful, possession will normally be awarded within 14 or 28 days. The landlord will also be able to claim for rent arrears ,together with interest and costs, and if agreed, the judgment will also order the tenant to pay the arrears, so this can be very expensive for the tenant.

Section 21 – Possession Procedure

A landlord would normally use the accelerated possession procedure to gain possession of a property using the section 21 route. However, occasionally the landlord may need to use the standard procedure. After the notice has been issued under section 21 and the period of notice has expired, possession proceedings may commence. Proceedings under the standard possession procedure are conducted in a similar way as with rent arrears.

Accelerated Possession Procedure (APP) using a Section 21 Notice.

The APP procedure does not allow for payment of rent arrears or any breach of the tenancy agreement it simply covers a claim for possession of the property and costs of making the application. These would have to be made under a separate debt action in the county court. So if you are issued only a Section 21 notice you will not have to pay any rent arrears unless the landlord makes a subsequent claim against you.

The APP procedure has certain requirements and limitations in its use, in that: it may only be used for assured shorthold tenancies; it is only available where the tenancy has been brought to an end or where the tenancy is statutory periodic; it may not be used for possession claims due to rent arrears or breach of the tenancy during a fixed term (as mentioned above); the tenancy agreement must have been made on or after 15 January 1989; the tenancy agreement and all notices must have been given in writing; the APP forms are in the form of a witness statement, which must be completed and sworn in person by the landlord as claimant or his solicitor and the APP action cannot be commenced until after expiry of the section 21 possession notice.

Despite the above limitations, the APP has several advantages for a landlord in that: possession can be brought about more quickly than under the standard procedure, taking only 28 days between sending the completed forms to the court and the issue of the possession order; there is normally no hearing. This saves attendance costs in time and travel and reduces the possibility that the case may be further delayed by adjournment and for agents, since there is no hearing, issues concerning the rights of audience in court will have no effect.

N5B Form - Commencing proceedings

The court forms are effectively a witness statement, which should be completed, signed and sworn by the landlord as claimant in front of a solicitor, commissioner for oaths or an officer of the court. It is important to note that it cannot be sworn by a managing letting agent, where, if this is the case it may well be thrown out.

The form should be completed and sent to the county court with the appropriate court fee, sending a copy for the court together with an extra copy for each defendant. Copies of the original and current written tenancy agreement, the required section 21 notice served and any other documents necessary to prove the landlord's claim must be sent alongside the N5B.

The court will then send a notice of issue to the landlord, and a form of reply and form to the tenant. As the tenant you have 14 days to return the reply form to the court. Make sure you do this in good time if you wish to dispute the order or make a counter claim of any kind. If you fail to return this, then in all likely hood the court will issue a possession notice.

If there is no reply from the tenant, the landlord will complete a request for possession, asking the court to make a possession order. If all documents are correct the judge will order possession.

If the tenant does not leave the property as ordered by the court, the landlord may issue a warrant of possession, which is a request for the court bailiff to evict the tenant. You as the tenant will then be classified as trespassing!

Rights of audience for a landlords Agent.

Where an agent wishes to bring possession proceedings on behalf of a client landlord, it is common practice for agent to be allowed to represent their landlord in such possession cases. The court always has the discretion to allow the agent the right to represent the claimant landlord (this is called the 'right of audience'), but it is not automatic and depends upon the judge hearing the case. Only the claimant in person, or solicitors has a legal right of audience court.

Suspended possession order

If the tenant may endure serious hardship as a result of eviction or that it would be unfair to the tenant to be evicted by giving possession back to the landlord, the court may decide that although the landlord has a good reason to want to evict tenant, the judge may decide to grant a suspended possession.

This means that the tenant can stay the property as long as they meet certain conditions e.g. paying any outstanding at a certain amount each week. If the tenant does not comply with the conditions of the order the landlord can apply to the court the bailiffs to evict the tenant.

As mentioned earlier it is very important you get good legal advice when served any notice as by arguing your case for hardship or unfairness you may be able to negate the landlords rights for any possession application in this way and be able to stay in your home. However, any suspension of possession will have conditions which you must abide by and any failure will mean the suspension is lifted and full possession will be subsequently granted.

Tenants Advice.

If you receive an notice, take action. Do not dither and procrastinate. If you act then you may be able to save your home and prevent possession. Do nothing and more than likely you will be evicted.