Possession Proceedings and Possession Orders
Solicitors in Essex & London
Do you know how to evict your tenants? As a landlord, there are many reasons why you may need to recover possession of your property. However, councils are increasingly advising tenants not to leave properties voluntarily. As a result, there has been an increase in the number of possession proceedings commenced and therefore an increased importance in ensuring the proper process is followed.
Most tenancies created after 1997 are assured shorthold tenancies (ASTs). For an AST you can serve two types of notices to end the tenancy: a section 8 notice or a section 21 notice.
A section 21 notice must expire after the tenancy has ended. The section 21 notice must give the tenant a minimum of two months’ notice. There are a number of requirements to check before a valid notice can be served. Failure to ensure compliance before the notice is served would render the notice invalid and a new notice would need to be served.
If a valid section 21 notice has been served the Court must grant a possession order.
A section 8 notice can be served during the tenancy where certain grounds are proven. For rent arrears, two full months of rent arrears must be present when the notice is served and at the date of the Hearing.
If there are over two months of rent arrears on both dates, then the Court must grant a possession order.
If the tenant was to pay off part of the rent arrears so they were below the two-month threshold, then the Court would only make a possession order if it felt it was appropriate. If the tenant were to make a counterclaim the Court may not be able to determine the level of rent arrears at the initial hearing. In this scenario a second hearing would be scheduled for the Court to consider the evidence in detail.
Typically, a counterclaim might be for disrepair at the property which materially affects the use of the premises.
The next step is to apply to the Court for a possession order. A standard possession order requires the tenant to leave the property within 14 days of the Hearing. This can be increased to 42 days if the tenant would suffer exceptional hardship.
If the tenant refuses to comply with the Court Order an application to Bailiffs must be made. The Bailiffs will visit the property and enforce the Court Order.
How long does it take to evict a tenant?
The typical timeframes are:
In addition to legal fees, there are a number of disbursements which are payable. To file the possession claim with the Court there is a Court Fee of £355. County Court Bailiffs charge a Court Fee of £121 to arrange an appointment. High Court Bailiffs charge differently but you would need to budget £700 plus VAT to arrange an appointment.
If you are successful at the Hearing and the tenant does not defend, the Court will typically order the tenant to pay you the £355 Court Fee and contribute £69.50 towards your legal fees. However, the Court will not take steps to enforce payment of these sums and it would be down to you to ensure payment of this and any rent arrears.
If the tenant defends the action in any way more realistic costs can be recovered but will generally not exceed 50% of the actual costs incurred.
This is a technical area of law and we are frequently consulted by landlords who have employed agents to serve notices which have not been effective.
Pinney Talfourd have experienced and specialist solicitors who regularly deal with the possession proceedings. We understand the importance of the process and work to ensure resolution as soon as possible. We are able to attend Court proceedings locally or arrange representation on a nationwide basis.
We can provide fixed fee advice at the start of the process to explain the procedure and serve notices and will provide best estimate of overall costs at the outset.
If you feel that you require further legal advice relating to Possession Proceedings and Possession Orders, feel free to contact any of our residential property litigation solicitors directly to discuss your legal issues in more detail. Our team offers consultations in any of our five offices across Essex and London, or, if more convenient, we are happy to meet you onsite at your own premises.