Thursday 1 December 2011

How to Obtain Order for Possession - Assured Shorthold Tenancies

Article by
Kevin Timms

The majority of private landlords are leasing their properties to tenants for a fixed period of time under an Assured Shorthold Tenancy. An Assured Shorthold Tenancy allows landlords the right of possession after the fixed term has expired unless there is a reasonable ground to gain possession of the property during the fixed term. The contrast to this being an Assured Tenancy where the landlord does not have an automatic right to possession of the property when the tenancy comes to an end.

As many landlords will know, it is particularly difficult to obtain possession of their property by evicting such tenants when a problem arises, such as unpaid rent or the tenancy coming to an end and the tenant being uncooperative. In the situation where a landlord knows that rent will not be paid, there is an urgency to obtain a possession order so that the landlord may once again return to profit.

One thing all landlords should be aware of is that it is a criminal offence to evict a tenant leasing their property under an Assured Shorthold Tenancy by any other means than by court order as this is deemed as harassment.

There are three main stages to evicting a tenant under an Assured Shorthold Tenancy:

Stage one – The Correct Notice requiring possession
Stage two – The Court Procedure to obtain a possession order
Stage three – Enforcement (where the tenant does not comply with the court order for possession)

Stage One – The Correct Notice requiring possession

There are a number of Notices that may be used to evict a tenant from a property leased under an Assured Shorthold Tenancy. In many circumstances, serving the proper notice will be sufficient. However, if you need to bring court action, you need to ensure that the notice has been served properly so that a court order may be successful:

  1. Section 21 (1)(b) Notice - Section 21 of the Housing Act 1988 requires that the landlord provides tenants of an Assured Shorthold Tenancy with a minimum of two months notice that he/she seeks possession of the property. Possession of a property under this Notice cannot take place during the initial fixed term of the tenancy, though, the notice may be served at any time ­during the fixed term of the tenancy. A Section 21 Notice will not be effective if the notice is dated to expire before the last day of the Tenancy.
  2. Section 21 (4)(a) Notice – This Notice will only apply to a tenant whose tenancy has become a statutory periodic tenancy. This means that the fixed term Assured Shorthold Tenancy has expired and the tenant is still in possession of the property. Again, the tenant must be given two months notice and the day on which the Notice expires must be the last day of a period of the tenancy. The last day of the period can be found with reference to the original fixed term tenancy.
  3. Section 8 Notice – Under Section 8 of the Housing Act 1988, there are 17 grounds which a landlord may use to recover possession of a property let under an Assured Shorthold Tenancy. Landlords must show that there is proof for these grounds to stand in court. Some of these grounds are mandatory grounds for possession whilst others are discretionary. For instance, Ground 8 is a mandatory ground and may be used where a tenant is in at least two months arrears at the time the notice is served and also on the date of the court hearing. Ground 8 can be evidenced by way of producing a statement of account to the court. Often, mixtures of these grounds are used to prove to the court that a possession order should be granted. The date in which proceedings can be brought will depend on the Grounds that the Notice is based upon.

Stage 2 – Court Procedure

There are two main types of court action that can be taken:

  1. Accelerated possession proceedings – an order for possession can be obtained within six weeks (subject to the court) of issuing proceedings if all the papers are in order (only available at the end of the term under a Section 21 Notice and no rent arrears); and
  2. Possession proceedings by way of a court hearing. This would apply if you want to claim rent arrears.

Whether you want possession of your property due to the tenancy agreement coming to an end or because your tenant is not paying rent, Garden House Solicitors will advise you as to the most efficient and cost effective way for you to obtain possession of your property.

Stage 3 – Enforcement

In many cases, a County Court order for possession against the tenant is sufficient to ensure that the tenant vacates the property promptly. However, it is unfortunate in some circumstances that the tenant does not vacate and must be evicted by bailiffs.

We can advise you and instruct bailiffs on your behalf ensuring that the tenant vacates your property in the appropriate legal manner.

If you are a private landlord and require possession of your property due to the Assured Shorthold Tenancy being due to expire or because rent is in arrears please do not hesitate to contact Kevin Timms on 01992 422 128 begin_of_the_skype_highlighting            01992 422 128      end_of_the_skype_highlighting or email Kevin at Tel: 01992 422 128

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