Landlord & Tenant Disputes
Kumari Hart Solicitors are regularly instructed to commence possession proceedings on behalf of Landlords.
One such case involved a Tenant who had refused to allow the Landlord access to the property in order to carry out the annual gas check, which a Landlord is under a legal obligation to do. This situation continued for a period of 4 months. The Tenant became very abusive with the Landlord and accused him of harassment after he sent a number of letters and texts asking for access. Things came to a head when eventually the Tenant agreed to allow the Gas Engineer to attend but then refused to open the door. The Landlord instructed Kumari Hart to regain possession of the property as by this time the Tenant had also stopped receiving Housing Benefit and the Landlord was therefore no longer in receipt of rent.
Section 8 or Section 21 Notice?
The first step to obtaining possession of your property is to serve the requisite Notice upon the Tenant. You need to decide which route is the most appropriate for you.
A section 8 Notice should be served in the following circumstances:
- The Tenant is more that 2 months in rent arrears (if the Tenant reduces the arrears to less than 2 months between service of the Notice to the court hearing then the Notice will become invalid).
- If you have a legitimate ground for regaining possession via a Section 8 notice, the notice can be served at any time during the tenancy, including the fixed term. The notice can be immediate, 2 weeks, or 2 months, depending on the grounds for the notice.
- It is often easier to serve a Section 21, even if the tenant is in arrears, as the process for a Section 8 can be costly and any grounds you give can be contested by the tenant in court, which may prolong the eviction process, and consequently allow the tenant to remain in the property
- It is possible to serve both notices at the same time, but it may not always be desirable.
- A Section 21 notice (also known as a Notice of Possession) cannot be served in the first 4 months of a tenancy (or any subsequent renewal). The notice must not end before the fixed term has expired (which is usually 6 months with Assured Shorthold Tenancies).
- You do not have to give any reason for serving the notice in order to regain possession of your property.
- All tenancies (including renewals but not tenancies that continue on a statutory periodic basis) that started after the 1st October 2015 are now subject to new rules governing the service and format of Section 21 notices.
- You must provide your tenants with an Assured Shorthold Tenancy Agreement, a valid gas safety certificate, a copy of the Energy Performance Certificate and a copy of the “How to rent” checklist.
- You will not be able to serve a Section 21 notice if you have not supplied your tenants with these documents. We recommend that you keep evidence that these documents have been provided to your tenant.
- If you have taken a deposit from the tenant then this must have been protected in a Tenancy Deposit Scheme in accordance with the regulations, failure to do so will mean that you are unable to serve a section 21 notice.
Once the period specified in the Notice has expired you will be entitled to issue possession proceedings. You will be required to provide evidence that you are the owner of the property, that the Tenant has an Assured Shorthold Tenancy Agreement and that the original term has expired and that you commenced proceedings after the end of the appropriate notice period. You will also need to confirm that the deposit has been protected by providing the deposit scheme reference number.
The Tenant will have 14 days to file a Defence after which the Court will list the case for a hearing. At the hearing the Judge will after hearing all the evidence, decide whether to grant the possession order or allow the Tenant further time to vacate the property. The maximum amount of further time allowed is 56 days.
The Landlord is entitled to recover rent arrears and also some fixed costs of issuing the court proceedings, which are included within the Possession Order.
If the Tenant fails to leave the property by the court deadline then a Warrant of Possession needs to be obtained by the Landlord. This will allow a Bailiff to attend and remove the Tenant. The Landlord can then enter the property and is usually advised to change the locks at the same time.
Another Landlord instructed Kumari Hart Solicitors in respect of a flat that he rented out, which was a leasehold property. The Tenant had been accused of anti-social behaviour including noise disturbance, stealing communal electricity to power her caravan and for allowing her pets to defecate in the communal areas. To top this off the rent arrears were in excess of £13,000! It gets worse; the Management Company gave notice to the Landlord of forfeiture of the lease should he fail to take steps to remove the Tenant and gain possession of the property. We successfully obtained a Possession Order together with an order for the tenant to pay the rent arrears and costs.
It is vital that as a Landlord you take prompt action upon rent arrears arising or if anti-social behaviour becomes an issue. As illustrated above, this can lead to serious consequences for Landlords for breach of terms of the lease in the case of a leasehold property or failure to keep up with the mortgage payments leading to the property being repossessed by the mortgage company.