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The last few years have been particularly testing for many private landlords. The challenges of the pandemic aside, recovering possession of rented residential property is not always a simple process. Residential tenants, and most residential licensees are covered by the Protection from Eviction Act 1977 which makes it an offence to unlawfully evict a tenant.
The only lawful ways a landlord can recover possession of residential property are:
There can be problems with establishing abandonment as it is not always easy proving that a tenant has gone. It would normally require a tenant to have handed back the keys, or to have completely removed all of their belongings and to have stopped paying rent.
Where landlords wish to recover possession of a residential property if, for example, the tenant is in arrears, or has breached other terms of the tenancy agreement, or the landlord simply wishes to recover possession to sell etc, it is important that the landlord follows the required steps. This includes:
Where a tenant fails to leave a property after the Notice of Possession expires, the proper procedure needs to be followed and a Possession Order must be obtained from the court before a landlord can try to take back the property.
Currently, there are generally two types of notice which are used to recover possession of a property - a Section 8 Notice (a fault notice) and a Section 21 Notice (a no fault notice). A Section 8 Notice is usually served where a tenant is in breach of the terms of the tenancy, most commonly unpaid rent.
For a Section 21 Notice to be served, a tenant does not need to be in breach of the terms of the tenancy, but the notice must be served correctly to be legally enforceable, and landlords must have complied with all the documentation required under s 21 and have protected the deposit in a scheme.
There are advantages and disadvantages to each of the notices and landlords should seek appropriate legal advice to ensure that they deal with matters appropriately before the issue of possession proceedings. In the case of Section 8, provided all the correct information is contained within the court forms, the claim will be issued by the court, and a hearing date will be set. Section 21 is an accelerated procedure. Usually, the court will not order a hearing, and the paperwork will be considered by a District Judge in chambers.
Landlords will be aware that the government’s proposals to abolish s21 ( The Renters ( Reform) Bill) are currently under scrutiny, and an announcement was made a few months ago that the abolition of no-fault evictions will be delayed until the implementation of improvements to the courts. Removing a landlord’s flexibility to terminate a tenancy with two months' notice without giving a reason promises to cause a profound upheaval in the private rented sector and give renters more security, impacting how landlords select their tenants. Watch this space!
Recovering possession is a complex area of law, and many possession claims fail because the correct notices are not given or correct procedures are not followed. The road to recovery can be tough and Judges expect landlords to do things properly and are generally unforgiving if mistakes are made.
For further information about how we can help you if you have issues with your tenants, please us on 01636 703333 or by emailing This email address is being protected from spambots. You need JavaScript enabled to view it.
Larken & Co Solicitors is Authorised and Regulated by the Solicitors Regulation Authority - SRA Number: 53640