What form of notice should you use:

The form of notice used to make your tenant aware that you wish to gain possession of your property will depend on several factors, such as the type of tenancy agreement you have your reason for wanting to regain possession of your property.

• If you have an Assured Tenancy, you may only use the section 8 procedure.
• If you have an Assured Shorthold Tenancy, you may potentially use the section 8 or section 21 procedure.

When you have the option of using either the section 8 or section 21 procedure, you must consider your reason for repossession. For example, if possession is required because your tenant is in rent arrears and you want to recover those arrears, then a section 8 notice could be more appropriate. Rent arrears are not recoverable under the section 21 procedure. If your aim is simply repossession of the property, then the section 21 procedure could be more appropriate as if the notice is served correctly possession should be granted and the case could be dealt with without a hearing, making it more cost effective. However, beware. You cannot serve a section 21 notice to bring a tenancy to an end before date when the fixed term of the tenancy would come to an end.

When a section 8 notice can be used:

Serving a section 8 notice is governed by Section 8 of the Housing Act 1988.  Under the section 8 procedure, there are mandatory and discretionary grounds that a landlord can use to gain possession, under which the Courts will, or may under their discretion, order possession of a property.

Some examples of the mandatory grounds, where the courts must grant possession include:

• The landlord requires the property to use as their principal home;
• The tenant has engaged in anti-social or criminal behaviour; or
• There are serious rent arrears (i.e. when rent is payable monthly, the tenant is at least two months in arrears).

Some examples of the discretionary grounds which can be relied upon, upon which the court may order possession, include:

• There is suitable alternative accommodation which can be made available to the tenant;
• The tenant persistently delays in payment of rent; or
• The condition of the property has worsened due to the tenant or their occupants.

Length of Section 8 Notice:

After establishing which ground(s) you want to rely upon, notice must be validly served on the tenant in the form prescribed by the legislation, and must be give the correct amount of time for the tenant to vacate the property. The length of time the tenant must be given before they have to leave the property, depends on which grounds you are giving notice under, and ranges between two weeks’ and two months’ notice.

After the notice period has ended, if the tenant has not vacated the property, you have one year from the date of the notice to start possession proceedings in the court to enforce the notice and ask for a possession order to be granted.

Section 8 Possession Proceedings:

To begin the possession proceedings, you must complete a claim form and particulars of claim form. These forms will include details of the grounds you specified in the original section 8 notice which you served that you are relying upon to gain possession, evidence relied upon to persuade the court the ground exists and can be relied upon (e.g. evidence of the rent arrears outstanding), along with personal information about yourself and the tenant.

If everything is in order, the court will issue the claim, returning the sealed forms for you to serve on the tenant or confirming it has served the tenant for you. The next steps will vary depending on the course of action the tenant chooses. They may acknowledge service, raise a defence to the claim or do nothing. The matter will be listed for a hearing in front of a court judge. On the hearing date the case will be heard in front of a judge, who may order possession of the property, make directions for steps to be taken by you and the tenant before a subsequent hearing takes place, or it may dismiss the claim if not all of the paperwork is in order.

If you are successful at a hearing, an order for possession will be made. If you are unsuccessful in obtaining a possession order, the tenant may continue to remain in the property until they move out on their own accord and surrender the property back to you, you can negotiate bringing the tenancy to an end by agreement, or a possession order is later obtained from the court.

Order for possession by the Courts:

After an order for possession is made by the Courts, the tenant is legally required to leave the property on the date specified. If they fail to leave, you must instruct bailiffs to act on your behalf to remove the tenant from the property, otherwise you could be at risk of unlawfully evicting the tenant.

Advice

Seeking advice from a law firm experienced in landlord and tenant disputes is highly recommended, to assist in determining the correct form of notice is prepared and served on your tenant(s), which can then be relied upon if the tenant doesn’t move out and court proceedings become necessary. There is no guarantee that a tenant will move out on receiving a notice asking them to, but by ensuring your paperwork is in order, you are likely to stand the best chance at obtaining a possession order and being able to recover your property even if the help of bailiffs are later required.

Get in touch today if you are experiencing landlord and tenant issues, to see how we can help.