Edward Jones and Haris Qureshi of our Dispute Resolution team answer Landlords' common questions.
If a landlord wants their property back and a tenant refuses to leave voluntarily, the landlord must follow the legal procedure below to lawfully regain possession.
It is important to follow the correct procedure as it is a criminal offence to evict a residential tenant without following the correct legal procedures (Protection from Eviction Act 1977). For example, if the tenant fails to leave the property after the expiry of a notice of possession, a possession order from the court and a bailiff may then be required to recover possession. This article answers some common questions that landlords ask us.
What is the legal procedure to recover possession of residential property?
The below stages should be followed if the tenant remains in the property.
- Grounds for possession:
If the tenancy has ended or there is a break provision, then 2 months' notice (for now at least) can be given (Section 21 notice). However, see below for imminent changes in the law.
If the tenant is in breach of the tenancy agreement, notice to terminate can be served on that basis (Section 8). The process is more complex as you have to prove your case.
- Issuing a possession claim for possession in the county court
Either the:
- Accelerated Possession procedure (where an order can be made without a court hearing taking place and can only be used where the landlord has served a Section 21 notice) or
- The standard procedure (where a court hearing will be required
and will be usually used where the landlord has served a Section 8
notice, or arrears are also sought under Section 21).
- The court will provide you with a date for the hearing and provide you with any further directions as necessary.
- The tenant will be given the opportunity to submit a defence to the court.
- Obtain a possession order from the court.
A possession order can be obtained at the 1st hearing if the Judge is satisfied that the technical legal requirements are met and any arguments the Tenant raises are of no merit. A 1st hearing usually takes place within 8 to 12 weeks of the Court proceedings being commenced.
If the Judge decides that there are Triable issues, a full Trial may be required and the process will take 6 – 12 months.
- Eviction
The final stage is to apply for a Warrant of possession which gives a bailiff the power to physically evict a Tenant. Usually, tenants leave before the physical eviction. It can take 1 to 5 months to obtain an eviction date.
How long will the court process take?
- Landlords can start court action as soon as the relevant notice period ends.
- The target for a possession case to be listed for a first hearing is 8 weeks. This is however dependent on the case's individual circumstances (i.e. if the tenant raises a defence) and the business of the Court, so can take 8 to 12 weeks.
- A contested Trial will take 6 –12 months from the start of the Court case.
- Once the Court makes a Possession Order, it usually takes 1 to 5 months to obtain an eviction date.
- The timeframe for the court process is therefore reliant on whether the case progresses through all 5 stages – usually, this is not required. For example, a tenant may vacate the property voluntarily following a notice or possession order being obtained and therefore it would not be necessary to apply for a warrant to enforce the order.
What is a Section 8 Notice?
- This can be served on a tenant who is in rent arrears or who has breached other terms of their tenancy agreement.
- A 14-day notice can be served setting out the reasons why the landlord will seek possession.
- Other breaches include damaging the property, anti-social behaviour, significant nuisance to neighbours, illegal, immoral or other wrongful use of the property.
- Please note that before issuing a Section 8 notice for rent arrears alongside with a detailed rent statement, the tenant must be at least two months' rent in arrears at the time of the notice and must still owe two months' arrears at the date of the first hearing.
What is a Section 21 Notice?
- This can be served on a tenant without any fault and where an assured shorthold tenancy has expired or there is a break clause.
- This can be served on 2 months' written notice.
- An important point is to ensure the notice is not invalid and does not entitle the tenant to a defence as this can make a court claim defective and it may be struck out possibly with costs against the landlord.
When will the Section 21 notice be abolished?
The new Renters' Rights Bill has been introduced to the House of Commons; with it at the Committee stage. The content of the Bill is similar to the previous Conservative government's "Renters (Reform) Bill" (which was ditched in May 2024). The Bill forms part of the Labour Government's manifesto commitment of transforming the "experience of private renting". Housing Minister, Matthew Pennycook, has affirmed that the Bill would be law by the first half or summer 2025. This is likely to progress but of course, is dependent on the outcome of expected further debate in Parliament.
Does this mean that a Section 21 notice served or issued proceedings will lose effect once this legislation is passed?
No, as currently drafted, the transitional provisions within the Renters' Rights Bill make clear that where a Section 21 notice has validly been served prior to the commencement date, tenancies shall remain assured shorthold tenancies until either those proceedings have been concluded or until the Section 21 (where no proceedings have been commenced) expires. Ultimately, a Section 21 notice will not be able to be issued from the date that the legislation passes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
