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Recovering Residential Property from Tenants

Thursday, 8 August 2013

In today’s private rental market, most residential tenancies are likely to be assured shorthold tenancies (ASTs) which are protected by the Housing Act 1988 (‘the Act’). Landlords wishing to gain back possession of their properties let under ASTs must use one of the two options available to them under either Section 21 or Section 8 of the Act.

Failure to follow the correct procedures could lead to criminal sanctions, as well as providing the tenant with a right to civil redress which can lead to substantial damages being awarded. Using forcible means to evict a tenant could also result in other criminal offences such as assault or harassment. Landlords should seek legal advice to avoid the pitfalls.

Using Section 21 to Recover Your Property

Section 21 can only be used on to regain possession on expiry of the fixed term, although it can be served any time before that. However, Section 21 is unavailable to a landlord to use if a tenant has paid a deposit not protected in accordance with the tenancy deposit schemes.

The notice need not take any special form, but the tenant must be given at least two months’ written notice by the landlord of the intention to regain possession. More notice may be required if the fixed term has expired and periods on which rent falls due are more than two months apart. Unlike Section 8, there is no need for a landlord to give a reason for seeking possession.

In the event a tenant does not leave by the date specified in the notice, a landlord can apply for ‘possession order’ from the court on issuing ‘normal possession proceedings’. This can take six to eight weeks to be listed for hearing.

The process can be sped up using the ‘accelerated possession procedure’, which is only available where a Section 21 notice has been served. In order to use this procedure there must be a written tenancy agreement in place and the requisite written notice seeking possession should have been given to the tenant. However, it should be noted the procedure does not allow for landlords to claim any money judgements (e.g. in respect of rent arrears), which can only be obtained through normal possession proceedings.

Using Section 8 to Recover Your Property

A Section 8 notice can be given at any time using certain grounds detailed in Schedule 2 to the Act. However, if repossession is being sought during a fixed term the tenancy agreement must stipulate the ground can be relied upon to bring the tenancy to an end.

In contrast to Section 21, a special form must be completed to give notice to a tenant. The amount of notice which must be given varies depending on which ground is being relied upon, but can be anything from two weeks to two months.

A possession order can also be sought under Section 8 if a tenant refuses to leave by the date given using normal possession proceedings. A further application for a warrant of possession will need to be made if a tenant refuses to leave by the date given in the order, whereby bailiffs arranged by the court will evict the tenant.

If you need specialist advice to recover your property, contact Peter Gourri today by email or telephone 0207 611 4848.

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