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How to regain possession of your property from a tenant

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How to regain possession of your property from a tenant
If your tenant stops paying rent, damages the property or its furnishings or
causes a nuisance to the neighbours, you may want to get the tenant out and the
property back.
The Protection from Eviction Act 1977 makes it a criminal offence for any person
unlawfully to deprive a tenant of his occupation of the premises. To evict a
tenant from the property a landlord must obtain a court order for possession.
Illegal eviction is a criminal offence which carries a maximum penalty of a ВЈ5,000
fine or 6 months’imprisonment in the Magistrates Court or an unlimited fine and
a custodial sentence of up to 2 years in the Crown Court.
It is also a criminal offence under the Protection from Eviction Act 1977 for any
person to harass a tenant in such a way that as a result he could be expected to
give up his accommodation.
How do I get a court order?
The information below relates to the most common form of residential tenancy
only, known as the Assured Shorthold Tenancy (AST). If you are a private
landlord, any tenancy since 28 February 1997 will be an AST unless it specifies
otherwise. (If you think that your case concerns a different type of tenancy, then
please contact one of our property litigation lawyers for advice on the
appropriate procedure.)
To obtain a court order a claim must be issued, usually, in the county court
nearest the property. Before issuing the claim, however, it is necessary to serve
notice of your intention on the tenant. There are two different types of notice
under the Housing Act 1988 that enable a landlord to commence possession
proceedings:
Continued…
Section 21 –This notice gives the landlord an automatic right to possession upon
expiry of the fixed term of a tenancy and is often served at the start of the
tenancy. At least 2 months’written notice must be given.
Section 8 –This notice allows the landlord to seek possession on various grounds
(some mandatory and some discretionary) set out in the Housing Act 1988,
including rent arrears and anti-social behaviour.
It is very important both to prepare the notice correctly and to serve it on the
tenant properly. If a mistake is made with the notice, it may prove invalid and
delay recovery of possession. In all cases, it is also important to ensure that any
deposit has been properly protected.
The two basic procedures for bringing a possession claim are known as �the
accelerated procedure’, which is available where there has been an original
written tenancy and a section 21 notice has been served, and �the standard
procedure’.
Which procedure should I use?
This will depend upon what you want to achieve and will involve considering
your priorities carefully:
The Accelerated Procedure
Speed of recovery – As the name suggests, this should be a quicker route to
getting your property back (depending upon when notice is served). There is no
hearing involved and, once the claim is started, it should take 6 to 12 weeks to
get your possession order.
Certainty of outcome – The paperwork, including the section 21 notice, must be
absolutely correct, or the claim is likely to fail. Provided the paperwork is
correct, there will be no defence available even if the tenant has a genuine
grievance against you.
Continued…
Rent arrears/damages – This procedure will only provide you with a possession
order. If you want to seek recovery of rent arrears or damages, then you would
need to bring a separate money claim.
Costs – This procedure should be cheaper because there is no hearing and no
opportunity for the tenant to raise a defence.
The Standard Procedure
Speed of recovery – If you have not served a section 21 notice in good time, this
route can be quicker. The section 8 notice period can be as little as 2 weeks. On
the other hand, this procedure involves a hearing and if the claim is defended
then it is likely to take much longer than the accelerated procedure. However, we
can help you try to speed up the process in straightforward rent arrears cases by
making use of the Possession Claims On-Line service (PCOL).
Certainty of outcome – The outcome is less certain than the accelerated
procedure because the tenant has an opportunity to raise a defence.
Rent arrears/damages – This procedure enables you to claim rent arrears and
any other financial losses at the same time as seeking your possession order.
Costs – The total costs of this procedure will depend upon how vigorously the
claim is defended, or not. It may be no more expensive than bringing a claim for a
possession order under the accelerated procedure, together with a separate
money claim. Having said that, if you lose the claim, you may be ordered to pay
the tenant’s costs.
Continued…
What if the tenant does not leave by the date ordered?
You will need to apply to the court for a warrant of possession and the court
bailiffs will make an appointment to evict the tenant.
If the tenant applies to stay or suspend the warrant, then there will be a court
hearing and a further delay. However, if the possession order has been made
pursuant to a section 21 notice or on one of the mandatory grounds under
section 8, then the court cannot allow the tenant to stay on for more than 6
weeks in total from the date of the order.
April 2012
This information has been prepared by Debenhams Ottaway as a general guide only and does not
constitute advice on any specific matter. We recommend that you seek professional advice before
taking action. No liability can be accepted by us for any action taken or not taken as a result of this
information.
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