Residential Possession – The Right Way

Possession of a rented property cannot be taken back unless it has been first ordered by the Court; the often significant time and legal cost required to get such an order are usually unrecoverable from the tenant. So how does the recovery process work in relation to residential tenancies from both a landlord's and tenant's perspective?

There are broadly two methods of obtaining possession and both require service of a preliminary notice notifying the tenant that the landlord requires possession upon expiration of a date in the future.

Notice pursuant to Section 21 of the Housing Act 1988 (as amended)

If the tenancy has or is coming to an end a notice must be served under this section informing the tenant that the landlord requires possession (minimum two months' notice). The validity of a notice is critical as it forms the basis of the Court proceedings that later need to be issued and served on the tenant. The following checks need to be made when serving section 21 Notice:

1. Always use the correct form of notice - a different form is required for a fixed term and a periodic term.
2. If joint tenants, a notice needs to be issued served on each tenant separately.
3. Ensure correct date of expiry of the notice is inserted on the face of the notice (different dates should be used depending on whether bringing to an end a fixed term or periodic term).
4. Make sure you get evidence of service of the notice, e.g. serve the notice by hand or obtain some other proof of delivery (recorded delivery).
5. Ensure the tenancy deposit is placed with an approved agent or scheme provider

Breach of any of the above will render the Notice defective and any subsequent Court proceedings would be struck out. If the tenant has not moved out by the date in the Notice, the landlord should move to issue proceedings in the local County Court to the property. We can advise on what you need to be aware of if you do issue Court proceedings.

Next month we shall examine the procedure and process for bringing a tenancy to an end by means of a Section 8 notice.

If you have any queries about Landlord & Tenant issues or regaining possession of your property, please call Mamoon Chaudhary or Dawn Cherry on 01709 510999 for a free half hour initial consultation, or email mamoon.chaudhary@oxcow.co.uk or dawn.cherry@oxcow.co.uk.