Obtaining Possession of Properties – An Understanding of the Process for Landlords

Obtaining Possession of Properties – An Understanding of the Process for Landlords

More and more people are investing money into buy-to-let properties and renting them to tenants as a means of regular income and potential capital growth.

However, in unfortunate situations, the tenant may fall into financial difficulties or isn’t as credible as he or she presented on paper. For landlords who find themselves in this situation, it is important for them to understand the process that needs to be followed to get their property back as quickly and cost-effectively as possible.

Evicting tenants

Under the Protection from Eviction Act 1977, it is an offence to evict someone from a residential property without a Court order. There are of course some exceptions, but the safest way to proceed is to seek an order for possession from the Court. If the occupier does not give up possession in accordance to the Court order, the landlord must apply for a warrant or writ of possession so the Court can appoint a bailiff or enforcement officer to deal with the order.

Assured Shorthold Tenancy

The most commonly pursued residential property claims are claims to recover possession of property let under an Assured Shorthold Tenancy (AST), either after it has expired or because there has been a breach of tenancy during the term.

Ending an AST during the term of the tenancy:

The way to end an AST during its fixed term is by exercising a valid contractual break clause or serving a “Section 8 notice” if the tenant has breached terms of the tenancy. This notice must be in a prescribed form and should identify the breaches the landlord is complaining of. It is important to take legal advice when preparing this notice as some breaches are easier to prove than others. A solicitor can help advance the best grounds of possession. Once the notice given has expired, the landlord can start possession proceedings.

Ending an AST at the end of the term:

If a landlord wants their property back after the fixed term has ended, they can give their tenant a “Section 21 notice”. This notice can be used if the fixed-term written agreement has ended, and other than the continuing periodic tenancy, no further AST exists. This notice requires tenants to be given at least 2 months’ notice to leave the property. There are strict time limits for commencing possession proceedings once a Section 21 notice has been served so it’s important that advice is taken as to when and how this notice should be served. It is often good practice to serve this notice during the fixed-term period so that it expires to coincide with the end of the tenancy.

The Court process

If the tenants do not leave the property by the date specified on the notice and the landlord is relying on a Section 8 notice for possession, the landlord can apply to the Court using the “standard possession procedure” which requires the parties to attend Court. If the landlord is not claiming rent arrears, he or she can apply for an order using the “accelerated possession procedure” which is quicker than applying for a standard possession order as the process is usually dealt with “on paper” without the need for any of the parties to attend Court. It is can be tactically better to get possession using the accelerated possession procedure, and then bring a separate claim for money afterwards, if the landlord thinks the tenant has the money to pay.

Enforcement of a possession order

Once the Court gives an order for possession, it will provide a date by which the tenant must leave the property. If the tenant fails to leave by that date, the landlord will have to apply for a bailiff’s appointment (warrant of possession) to arrange for a bailiff to evict them.

If you are a landlord and require advice on the matters raised in this article, please do not hesitate to contact Sangita Manek on sam@blasermills.co.uk or call 01923 725004.