Residential Possession & Property Dispute Solicitors
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Possession proceedings for residential properties can take up to twelve months, if not longer. Notices are typically two months long. Getting the steps towards residential property possession right the first time is crucial.
One small mistake can set you back to the start, which can be disastrous if your tenant fails to pay their rent.
What are the Reasons for Obtaining Possession of a Let Residential Property?
Money owed by a tenant is the most common cause for a landlord to seek legal advice. But other grounds can cause a disagreement between a landlord and tenant, which require some sort of intervention or dispute resolution. These include:
- The tenant has breached a term in the tenancy agreement, such as allowing the property to fall into disrepair or unlawfully subletting it.
- The landlord wants vacant possession to sell or occupy the property.
The law typically favours the tenant and will always protect their rights and position. It’s not an option for a landlord to just re-enter the property and change the locks. Such unlawful entry would give the tenant a valid claim against the landlord for breach of the tenancy terms.
The Steps to Recover Possession of Residential Property
The landlord’s first step towards recovering their residential property is to serve the tenant with a ‘notice of possession’.
If the notice has been correctly issued and the tenant fails to leave the property within the required timeframe, the landlord must obtain a possession order from the court.
The landlord must issue a possession claim and obtain an order from a county court before a landlord is legally entitled to re-enter the property and evict the tenant. Once the order has been made, and if the tenant does not leave on the date ordered by the court, the landlord can use bailiff services to recover possession from the tenant legally.
Notice of Possession
Most tenancy agreements are Assured Shorthold Tenancies (ASTs). All assured tenancies entered into on or after 28th February 1997 are automatically considered an Assured Shorthold Tenancy.
Two types of notice can be used to recover possession of a property let on an AST. These are a Section 8 notice, otherwise known as a fault notice, and a Section 21 or no fault notice.
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Section 8 Notice
A Section 8 notice is usually used when the tenant breaches the tenancy agreement’s terms. The most common reason for using a Section 8 notice is unpaid rent.
The Section 8 notice informs the tenant that the landlord will commence possession proceedings based on specified grounds. The notice will also state the earliest date that proceedings can begin.
If the rental arrears remain unpaid, the landlord can commence possession proceedings after the expiry of the notice.
If a possession claim is not issued within twelve months of service, the original notice is rendered invalid, and the process must start again from scratch.
Crucially, the notice period varies depending upon the grounds for possession cited under Section 8. The most common ground is a minimum of two months’ rent arrears. In this case, the notice period must be at least two weeks.
A Section 8 notice may be invalid if it contains any material errors or is not issued using the latest version of the form.
Section 21 Notice
With a Section 21 Notice, a tenant does not have to be in breach of the tenancy agreement. Once the notice has expired, the landlord can issue court proceedings for a possession order.
The possession date specified in the notice must be at least two months. The earliest possession date depends upon whether the type of tenancy being terminated is a fixed-term or a periodic tenancy. It is essential to seek expert advice to ensure the correct date is used and the notice is valid.
How to Ensure a Notice is Valid
Here is a checklist that every landlord should complete to help ensure the success of the possession notice when they serve it.
- Is this the correct form? Is it the latest version?
- Are all the details correct on the form, and is it complete?
- Has the correct amount of notice been calculated? Does it account for service time?
- Is the method of service correct?
- Was the tenant’s original deposit correctly managed in line with the current law?
- Has the ‘prescribed information’ regarding the deposit been supplied to the tenant?
- Was the tenant supplied with a free Energy Performance Certificate (EPC)?
- Did the tenant receive a valid gas certificate (if relevant) at the start of the tenancy?
- Has the tenant been provided with the appropriate leaflets published by the Department for Communities and Local Government entitled ‘How to Rent: The Checklist for Renting in England’?
- Has the landlord served a notice before being entitled to do so?
- Has the property been licensed (if required) in line with the local authority’s regulations?
- Have any payments made by the tenant which are prohibited under the 2019 tenant fees legislation been returned to them or dealt with appropriately?
Any error on the landlord’s part can render a notice invalid, meaning the whole process must start again from the beginning. There is much more to serving a successful notice for possession of residential property than first appears.
Taking professional advice before issuing a notice for possession will ensure correct service, saving landlords time and money.
Speak to the Experts
As a landlord, seeking legal advice at the earliest opportunity when encountering difficulties with a tenant is essential to maximising chances of a swift and positive outcome.
Helix Law offers professional and pragmatic legal advice to landlords across the full spectrum of tenancy agreement disputes and residential possession proceedings. We carry out residential property possession work daily in courts across England and Wales.
Whether your tenant dispute is at an early stage or an established complex case, Helix Law offers the expertise and experience to find the most cost-effective solution for the best outcome.
Even the most experienced landlords use Helix for specialist advice, to serve notices, issue possession proceedings, and regain control of their property. It’s faster and safer to rely upon legal expertise and experience to get everything right the first time.
We typically operate on a fixed fee basis in residential property possession matters and are regulated by the Solicitors Regulation Authority.
Contact Helix Law today for help with tenancy disputes and residential property possession.
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