I am frequently asked how long it will take to regain possession of a property from a tenant with an Assured Shorthold Tenancy, the answer is that without the agreement of the tenant it can take anywhere between 3-5 months. With the agreement of the tenant it can be a matter of days.
There are generally three ways for a tenant to leave a property;
The time taken will vary depending on which of the above apply, the attitude of the tenant and the court handling the case. The location of the property will determine which court you must use and some courts are busier and slower than others.
We have seen claims in central London delayed by a few months because the court is too busy. Court response times can be slower over the summer and festive periods and these can also have an impact.
The Tenant leaves by agreement
This can be the fastest way to recover possession but you must proceed with caution. A tenant can agree with a landlord to vacate the property at any time. We would strongly recommend entering into a Deed of Surrender with the tenant confirming the details if any agreement is reached. Any negotiation should be on a ‘without prejudice’ basis, i.e. ‘off the record’ and if monies are to be written off or even paid by the landlord they should not be paid or confirmed until after the tenant has vacated the property. A promise to leave a property is not generally enforceable.
Possession is obtained using a notice under Section 8 of the Housing Act 1998
A court order is required to recover possession and without one a landlord is at risk of a claim for damages against them for unlawful eviction.
A section 8 notice is a fault based notice. With this type of notice the landlord is saying the tenant has done something wrong and that therefore the tenancy needs to end. An example would be where the tenant has not paid rent. A section 8 notice, based on rent arrears, will expire after 14 days and at that point if the fault has not been resolved, the landlord can issue a claim for possession of the property in the county court.
The court will then list a hearing no less than 4 weeks and no more than 10 weeks from the issue of the claim form. At that hearing the tenant will have the opportunity to defend the claim. If they do so it is possible that the matter might be adjourned with further directions. Although it is fairly rare the tenant might deny the arrears exist or suggest the tenancy is not accurate or that the notice was not received.
Otherwise, if the matter is straightforward then usually a possession order will be made at the hearing forcing the tenant to leave the property between 14 and 42 days after the hearing. The usual order is that the tenant should vacate 14 days after the hearing with 42 days reserved for say a disabled tenant in adapted accommodation who might struggle to locate suitable alternative accommodation.
If the tenant remains in the property after the possession order has expired it is necessary at that stage to instruct a court bailiff to forcibly evict the tenant. The waiting time for a bailiff appointment can vary between courts but in general a wait of 4 weeks is not unusual. The bailiff will then attend and the landlord will obtain vacant possession of their property. At that point the landlord will technically regain possession and for obvious reasons we would usually advise changing the locks at that point.
Adding up the notice period of 2 weeks, the hearing date of between 4 – 8 weeks, the period ordered by the court of between 2-7 weeks and the time for bailiff’s appointment of 4 weeks the total time using a section 8 notice can be between 12-21 weeks.
Possession is obtained using a notice under Section 21 of the Housing Act 1998
A section 21 notice is a no fault notice. The landlord is saying ‘I am the landlord and I would like the property back’. The earliest that a section 21 notice can expire is at the end of the assured (fixed) period of the tenancy, or, if a periodic tenancy, after 2 months. The Deregulation Act 2015 also included legislation that means that it is not possible to serve a section 21 notice in the first 2 months of a tenancy. There are also additional regulations that impact the validity of section 21 notices.
Many tenants will vacate the property when the section 21 notice expires but for those that don’t it is then necessary to issue a claim in the county court. Using the accelerated possession process it is possible to avoid the need for a court hearing. At least 2 weeks after the claim has been issued a judge will review everything on paper and if everything is in order a judge may make a possession order without the need for a court hearing. Depending on the specific court that can take in the region of 2-4 weeks. A possession order will then be made forcing the tenant to leave between 2 and 7 weeks later. If they do not leave at that time then it will be necessary to instruct the court bailiff to attend the property in the same way as with a section 8 notice, referred above. Instructing a court bailiff can take an additional 4 weeks (if not longer) depending on how busy the local court is.
Adding up the notice period of 2 months or about 8 weeks, the time for the Judge to decide the claim on the papers will be 2-4 weeks, the period ordered by the court of between 2-7 weeks and the time for bailiff’s appointment of 4 weeks the total time using a section 21 notice can be between 16-21 weeks.
Landlords should anticipate that the process will take in the region of approximately 3-5 months depending on the specific route
We suggest avoiding delay by taking proactive steps to serve notices as quickly as possible whenever an issue (or even a potential issue) arises. It is possible to serve a notice but then not rely upon it
Because of the possible timescales it is sometimes cheaper to pay the tenant to leave or at least forgive the arrears if they leave
09 February 2016
Alex Cook is a Director at Helix. Alex initially trained academically as an unregistered barrister and was a Partner and Head of Civil Litigation at a large firm based in the South East before joining Helix Law. As well as focussing on expanding Helix, Alex specialises in commercial and property related litigation and he has acted for a broad range of clients including offshore property investment funds, small businesses and individual property owners.
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This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.