Which possession proceedings should I use?

Accelerated Possession Proceedings (After expiration of a Section 21 notice)

These proceedings are referred to as non-fault based or accelerated possession proceedings. Suitable if you are looking to evict your tenant without reclaiming any rent arrears or for any other non-fault based reason. With accelerated proceedings there is [usually] no court hearing which you or a legal advocate are required to attend.

The tenant cannot be evicted before the end of their tenancy but you can issue a Section 21 notice prior to inform the tenant you will not be renewing the agreement and wish them to leave at the end (subject to the correct notice and period being given). If the tenant is already in a periodic agreement (current tenancy agreement has ended and no new one has been issued but you have continued the tenancy on the same terms) a section 21 notice can be served but the duration of the notice period will differ depending on the terms of the tenancy agreement.

These proceedings should be used if:-

  • Its an assured shorthold tenancy commencing after 1989
  • You have a copy of the first (and most recent) tenancy agreement
  • Any deposit taken has been dealt with correctly
  • You have a copy of the HMO license (or application) if applicable

 

Standard Possession Proceedings (After expiration of a Section 21 notice)

These proceedings are referred to as non-fault based. Suitable if you are looking to evict your tenant without reclaiming any rent arrears or for any other non-fault based reason. The tenant cannot be evicted before the end of their tenancy but you can issue the notice prior to inform the tenant you will not be renewing the agreement and wish them to leave at the end (subject to the correct notice and period being given). You would only use these proceedings rather than the accelerated possession proceedings with good reason, some of those reasons may be:

  • There has never been a written tenancy agreement
  • You have lost the written agreement

You can still use Section 21 of the Housing Act 1988 to evict the tenant, however, a Court Hearing will automatically be listed with this process. The claim is very similar to the Section 8 rent arrears process. You can either attend the hearing yourself or you can instruct a legal advocate to attend for or with you at an additional cost.

No written tenancy agreement

There are many circumstances in which a Landlord may not have a copy of a written tenancy agreement. Maybe due to:-

  • A verbal agreement so no written agreement ever signed – maybe you have let to a friend
  • You have lost the written agreement – especially if they moved in years ago
  • The Letting Agency has shut down and never provided you a copy
  • ….. and many more reasons

In the absence of a written agreement the terms of the tenancy need to be established before a notice can be served. Getting the documents right in the first place is the most important part of the process. If you send the wrong notice, have incorrect dates or the content is incorrect you will not be granted a possession order by the court. .

 

Standard Possession Proceedings For Rent Arrears  (After expiration of a Section 8 notice)

Rent arrears eviction proceedings are brought under Section 8 of the Housing Act 1988 which is used in many other circumstances but most commonly in the case of rent arrears.

It only takes 14 days for the Section 8 Notice to expire and then you can proceed to making an application to the court for possession and the money order. To use this process for rent arrears your tenant must be at least 2 months in arrears or 8 weeks if paid weekly. You can use this process at any stage in the tenancy even if there are several months left to run of the fixed term of the tenancy agreement.

There are down sides to using this process one of them being no guarantee you will be granted possession of the property due to unexpected complications that can arise. So, you may decide to just use the section 21 process (as long as the tenant is near the end of their fixed term tenancy) to get the tenants out and then apply to the small claims court later for the rent arrears if you think your tenant has the means to pay.

There will be a hearing listed in the County Court for this kind of possession which you will be required to attend. To be given the best chance of a success you should make sure the tenant is in at least 2 months of rent arrears when serving the notice and at the date of the hearing.

 

Lodger Eviction

Usually by simply telling the lodger you wish them to go (giving them a reasonable amount of time to find somewhere new) is fine and they leave with no problems at all. However, if they will not go you should make sure you do it correctly.

Serve notice. You should first serve a notice to quit specifying the date in which they should leave.

Change locks. If the notice has expired and they are refusing to go you should wait until they are usually out of the house for a period of time and arrange for the locks to be changed. When they return you should NOT let them back in the property. It would be a good idea to have the police present for a certain time asking them to attend to prevent ‘a breach of the peace’. You should never use force or violence as you could be prosecuted which is why ensuring this remains a passive eviction is important.

Returning to the property. No-one should allow them to re-enter the property after the locks have been changed.

Collecting their belongings. The only time you should allow the back into the property to pack their belongings should be if they are escorted by the police.

On-going problems. If the ex-lodger still continues to cause problems after the locks have been changed you should call the police if you feel threatened and maybe consult a solicitor to apply for an injunction order.

Before you use this method to evict a lodger you should make sure it is NOT a tenancy which then gives them rights under Protection from Eviction Act 1977. If you are not sure about this consult with an expert on the matter otherwise you may find yourself in hot water.

What if the lodger will not go peacefully?

If they will not go peacefully (without force) after the notice has expired you should apply to the court for a possession order which can then be enforced by a Court Bailiff. You cannot use the accelerated route for this, you must use the standard procedure.