Housing Market & possession claims

The current state of the housing market and the reluctance of banks to agree mortgages has led to a buoyant rental market. For those who have already established themselves, buy-to-lets are gaining popularity, particularly amongst those looking to provide for their future. Nevertheless, as a profession, being a landlord is not without its hazards, so should not be looked upon as an easy way to make money. Even the most careful checks of potential tenants can fail to weed out every possible problem, so there is occasionally the need to evict a troublesome residential tenant.

The method for evicting a tenant is clearly laid down by law and those landlords who fail to adhere to the correct methods can find themselves facing prosecution. Pressurising and harassing tenants is regarded as a criminal offence, so it is imperative that the correct procedures are followed. The laws governing eviction are provided as a means of protecting tenants’ rights and have mostly eradicated the scare tactics used by unscrupulous landlords. Despite the very real potential of having troublesome tenants to deal with, many landlords do not have any knowledge of the necessary eviction procedures prior to a problem arising. This is where expert legal advice can help. Landlords would be well advised to know their rights and the rights of their tenants prior to entering into any tenancy agreements, so if things do go wrong, the landlord is already familiar with the necessary legal requirements for an eviction. A good solicitor is an invaluable asset to any landlord, whether their portfolio consists of one or a hundred properties.

Although there are around 17 grounds for possession, the usual cause for desiring eviction is for rent arrears, for which there are two common court procedures. An initial warning should be sent, giving notice of intention to start proceedings, followed by a Possession Notice under either Section 21 (end tenancy) or Section 8 (rent arrears) of the Housing Act. These possession notices warn the tenant to either pay the arrears or leave the property and are often enough to make the tenant realise the severity of the situation. If the tenant decides to co-operate, either the rent arrears may be paid or the property vacated, depending on which possession notice is served. Those tenants who remain obstinate require the landlord to take further action.

The next step depends on the type of tenancy agreement that is in effect. If the fixed term of an assured or assured shorthold tenancy has come to an end, the landlord can usually seek possession under the accelerated possession procedure, using Section 21. This procedure dispenses with the need for providing grounds for possession, as long as at least 6 months has passed since the start of the tenancy. Although this procedure is designed to be quicker and easier than other methods of eviction, landlords should be aware that it can takes weeks, or sometimes months, before the process is complete, especially if the court is experiencing a backlog of cases.

Where the accelerated possession procedure is not the appropriate method, a Section 8 notice can be served, using the rent arrears as grounds for possession. The arrears need to total at least 2 months rent and a fixed date action can be taken whereby the court will provide a date for a hearing, at which the landlord must provide evidence of the arrears. If possession is the main issue at hand, this is not the procedure to use, as the possession order will not be granted if the tenant has cleared the arrears prior to the court date. In these cases, it is often better to serve a Section 21 notice and wait for the longer notice period to expire before using the accelerated possession procedure.

The two procedures both have their recommendations and their pitfalls and a good solicitor will be able to advise on which method suits the particular needs of the landlord. If rent is an issue, landlords should be aware that Section 21 does not provide for arrears recovery, but can be quicker due to the dispensing of proof of grounds for possession. In this case, it is possible to secure new tenants and thus new income, relatively quickly. Section 8, however, will allow for the recovery of arrears and is useful where the main issue is the money and the term of the original lease has not yet exceeded 6 months.

Whatever the cause for action and the desired outcome, the landlord would be well advised to seek professional legal advice. This is particularly the case where the landlord owns more than one property, as valuable time can be spent in trying to deal with an eviction and it is not unusual for those with large property portfolios to have more than one eviction pending at any one time.

You can get useful advice on property leases here.

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