Fair Rents (Scotland) Bill or Artificial state manipulation of free market rent?10:34 AM, 6th November 2020
About 3 weeks ago 36
The Government has released it’s full guidance for the possession action process under the new rules post the emergency eviction ban. Click here for the full guidance.
Stage 1: Serve a notice of seeking or requiring possession
Give your tenant a Section 8 or Section 21 Housing Act 1988 notice, specifying the date by which you would like your tenant to leave your property.
Due to coronavirus (COVID-19):
In England: Notice periods given to tenants from 29 August 2020 to at least 31 March 2021 must be at least 6 months for most grounds (including Section 21 notices). However, there are certain cases where a shorter notice period may be provided. These include those in relation to anti-social behaviour (including rioting), domestic abuse, fraud and where a tenant has accrued rent arrears to the value of at least 6 months’ rent. For more detailed information about notice periods between 29 August 2020 and 31 March 2021 see Section 8 notices and Section 21 notices.
In Wales: Notice periods given to tenants from the 26 March to 23 July must be at least 3 months for all kinds of notice. Notice periods given on or after 24 July 2020 must be at least 6 months, other than for grounds relating to anti-social behaviour which remain at 3 months.
Stage 2: Make a possession claim
If your tenant does not leave by the date specified in the notice, you can apply to the court for a Possession Order. You must attach evidence explaining how the coronavirus pandemic has affected you and/or your tenant.
The tenant can submit a defence to the court. In the defence, the tenant may put forward legal reasons why a possession order should not be made, the tenant may put forward a counterclaim, or the tenant may ask for extra time to vacate due to extreme hardship. If a defence is received, the court will send you a copy.
If your claim is based on a section 21 notice and you have used the court’s ‘accelerated procedure’, the judge can consider the claim documents, and any defence received, and make a Possession Order without a hearing taking place.
If you made a claim for possession to the courts before 3 August, you need to notify the court and your tenant that you wish to continue with your claim. This is called a ‘reactivation’ notice.
Stage 3: Be available on the review appointment date
You will be sent a date when the judge will review the court file, and a date for the substantive hearing. At least 14 days before the review date, you will need to confirm to the court that you will be contactable on that date, send the court an electronic copy of all of the case documents and confirm that you have also provided these to your tenant.
On the date of the review there will be duty scheme advice arrangements in place to assist the tenant and promote settlement. You should ensure that you will be available to discuss the case with your tenant and where possible reach a settlement with them without the case progressing to a substantive hearing.
Stage 4: Attend the possession hearing
There will be a possession hearing 28 days after the review date, at which a judge will decide whether to make a possession order or give other case management directions.
Stage 5: Apply for a Warrant of Possession
If a Possession Order was granted and your tenant does not leave by the date specified in the order, you can apply to the court for a Warrant of Possession. The tenant can apply to suspend the Warrant. A county court bailiff will enforce the warrant and carry out the eviction.
Important: To manage the coronavirus (COVID-19) pandemic, local lockdown restrictions may be introduced in the postcode in which your property is located. If the local lockdown places restrictions on entering premises, a bailiff will not be able to enter your property to carry out the eviction. You will be notified of any changes in the progression of your case by the court. In addition, the government has issued guidance to bailiffs that they should not carry out evictions in the weeks leading up to and over Christmas other than in the most serious circumstances.
Claims for possession made before 3 August 2020
If you have an outstanding Warrant of Possession
If you have a Warrant of Possession but no longer require an eviction to be carried out – for example, because your tenant has left the property and has cleared their possessions and returned their keys – you should let the court know as soon as possible that you do not want the eviction to go ahead.
The notice of bailiff’s appointment that you received from the court will provide you with contact details, the claim number and the warrant number. You should contact the court, quoting the relevant details, to let the bailiff know that attendance at the property is no longer required.
Eviction appointments which were cancelled as a result of coronavirus will be rescheduled. When setting eviction dates bailiffs will, as far as possible, prioritise those warrants previously identified as priority cases where this information is known to them. Outside of this, warrants will be prioritised in date order. A notice of the eviction appointment will be sent to both landlord and tenant. Appointments will be scheduled with 14 days’ notice and the tenant will be able to apply to suspend the eviction.
If you have a Possession Order and the date on which the tenant was due to give up possession has passed, but you have not yet applied for a Warrant of Possession
In the light of the coronavirus pandemic and the effect that this may have had on your tenants, you should carefully consider whether you wish to proceed with the eviction. You are still able to apply for a Warrant of Possession. However, the eviction may take longer than usual due to the large volume of cases currently in the system.
You do not need to take any steps if you decide not to seek an eviction at once and you will still be able to rely on the Possession Order if you decide to take your property back at a later date. You can apply for a Warrant of Possession at any time during the period of 6 years after the date a Possession Order is made.
If you have made a claim but have not yet had a court hearing
If you made a claim for possession before 3 August 2020, it is up to you to inform the court if you wish to proceed with your claim. You must do this by sending a completed reactivation notice to the court and delivering a copy to your tenant. This applies to both accelerated and standard possession claims.
If you made a claim for possession before 3 August 2020 and do not inform the court that you wish to continue, your case will not proceed. However, you will have 6 months in which to inform the court that you wish to proceed with your case. If you do not serve a reactivation notice by 4pm on 29 January 2021, your case will be automatically stayed and you will need to make a formal application to restore it.
You should first check the Court and tribunal website to see if the court to which you sent your claim is open and will be processing cases.
You can send your reactivation notice to the court via email or post.
The reactivation notice must include any information you have about how the tenant and any dependants, such as children, living with the tenant has been affected by the coronavirus pandemic. For example, if they have suffered a loss of income as a result of the coronavirus pandemic or they have been shielding. If your claim concerns outstanding rent arrears, you must also provide an updated rent account for the past 2 years. You must provide the reactivation notice, and information about the effects of the pandemic, in order for your claim to proceed. You should consider whether making a possession claim is appropriate before confirming that you wish to proceed. For example, if you are making a claim on rent arrears grounds you may wish to negotiate a rent repayment plan with your tenant rather than proceed with the possession claim.
Her Majesty’s Courts and Tribunal Service have drafted a template reactivation notice which you may wish to use.
You or your tenant can ask the judge to consider whether the hearing can take place remotely, by putting a request in writing and sending it to the court. Both parties will need to agree that the hearing can take place remotely, however it will be the judge who makes the final decision as to how the hearing proceeds.
If you have multiple claims at the same court, you must provide a reactivation notice for each individual claim but can file them alongside a covering letter detailing all of the cases which are in train at that court centre, and giving the following details:
If the court has made case management directions in your case (for example at an initial hearing)
If you have received case management directions, you will need to file a reactivation notice (see above). However, you will also need to attach either:
You can also provide a statement in writing setting out whether the case is suitable for a remote hearing.
Claims for possession made on or after 3 August 2020
If you made a claim for possession on or after 3 August, it will be processed in due course. You will not need to provide a reactivation notice, but you should provide information about the impact of the coronavirus pandemic on your tenant to the court (see COVID-19 Case Marking). If you have not yet done so, you should provide this information to the court as soon as possible.
As with claims for possession made before 3 August 2020, you or your tenant can ask the judge to consider whether the hearing takes place remotely, by putting a request in writing and sending it to the court. Both parties will need to agree that the hearing can take place remotely, however it will be the judge who makes the final decision as to how the hearing proceeds.
How long will the court process take?
Due to the COVID-19 pandemic many cases will have built up which the courts need to process, and the courts will not be operating at their full capacity. Therefore, it is very likely to take longer than the usual 8 weeks for your claim to be heard by a judge. You will receive a minimum of 21 days’ notice of the date on which the review will take place and the substantive hearing (if needed) will be a minimum of 28 days after this. We ask for your patience during this time. We would encourage you to continue to engage with the tenant to explore what can be achieved in terms of assisting the tenant to access benefits, or a discretionary housing payment, or agreeing a repayment plan, as appropriate. We also encourage you to seek out organisations that can support a discussion between you and your tenant before the court hearing date.
You can find more information about this at the Civil Mediation Council’s website.
You can also access the Housing Ombudsman Service for training on dispute resolution if you are a member.
There are several services available in the market which specialise in resolving disputes in the private rented sector (such as TDS Resolve, PRS Mediation Service and Resolve by Flatfair) which you may wish to consider. Judges are responsible for listing cases for a hearing in court. As a guide, the following types of case will be listed with priority.
(a) cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985;
(b) cases with extreme alleged rent arrears accrued, that is, arrears equal to at least (i) 12 months’ rent or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source;
(c) cases involving alleged squatters, illegal occupiers or persons unknown;
(d) cases involving an allegation of domestic violence where the claimant is a Social Landlord and possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted);
(e) cases with allegations of fraud or deception;
(f) cases with allegations of unlawful subletting; and
(g) cases with allegations of abandonment of the property, non-occupation or death of defendant;
(h) cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.
Subject to the above, priority will be given to claims issued before the stay commenced.
As the courts and bailiff procedures resume, you may have to wait for a bailiff appointment to become available if a Warrant for Possession has been issued. It is important that you communicate to the court if you no longer need the appointment, for example in circumstances where your tenant has agreed in writing to vacate the property and returned their keys.
If your tenant has built up rent arrears, you should communicate with them in the first instance to gather more information about their personal circumstances and how they may be able to pay off their arrears.
An early conversation between you and your tenant can help to agree a plan if your tenant is struggling to pay their rent. This can include reaching a temporary agreement not to seek possession action for a period of time and instead accept a lower level of rent or agree a plan to pay off arrears at a later date. It is likely to be cheaper to accept a slightly lower rate of rent, rather than arranging for a new tenant to move in.
You are also encouraged to consider mediation. Mediation allows an independent third-party to assist those involved to reach a mutually acceptable agreement to resolve their dispute, without the matter needing to progress through court. This includes agreeing to a rent repayment plan. Mediation can be quicker and cheaper than court action.
There are several services, as well as individual mediators, available in the market who specialise in resolving disputes in the private rented sector. There is no single list of suitable mediators in your area, but you may wish to check:
You should attempt to resolve any issues with rent arrears with your tenant before issuing a notice or claim for possession. A constructive, open dialogue between landlord and tenant is more likely to lead to agreement on a workable solution for both parties which avoids the need for court action.
In some circumstances, you may need to act because your tenants are committing anti-social behaviour. This could be more minor disruptive behaviour (for example against housemates or neighbours in a House of Multiple Occupation), or it could be serious and/or criminal. Whilst possession action is one method of resolving such issues, there are alternative courses of action which you may wish to consider prior to, or instead of, serving a notice requiring or seeking possession.
You should always act carefully when negotiating with tenants who are accused of anti-social or disruptive behaviour. Take care not to jeopardise your own or others’ safety and take advice from the appropriate source (for example, a solicitor, your local authority or the police), if you are unsure how to proceed.
Some disruptive behaviours could be resolved through a frank and full discussion by the parties involved. You should talk to or write to your tenant in the first instance, informing them of the complaints which have been made against them and making clear that their behaviour is unacceptable. You should keep a record of the conversation. If this does not work, you should give the tenant a final warning and make a record of this.
Sometimes, a tenant is not the right fit for the property, particularly in a House of Multiple Occupation, for example if they do not get on with their housemates. You may wish to discuss ending the tenancy by mutual consent. However, you should not harass or force the tenant to leave without following the formal possession process.
When responding to severe instances of anti-social behaviour, it may be worth bearing in mind that the police, local authorities and other local agencies have a range of flexible tools and powers that they can use to respond quickly and effectively to anti-social behaviour, as provided by the Anti-Social Behaviour, Crime and Policing Act 2014. These include:
You may wish to read the statutory guidance for frontline practitioners on the use of powers to address anti-social behaviour.
You should consider contacting your local authority or the police in the first instance. If a criminal offence, such as criminal damage or assault, has taken place you should contact the police straight away.
If, having tried alternative means of resolving anti-social behaviour being perpetrated by a tenant, you feel that you have no option but to seek possession, there are grounds for you to do so under Section 8 of the Housing Act 1988.
Under new regulations which came into force on 29 August 2020, the notice periods for Ground 7a, for Serious Anti-social behaviour, and Ground 14 for nuisance or annoyance, or the illegal or immoral use of the property, were returned to the lengths which they had previously been prior to the passing of the Coronavirus Act on 26 March 2020. This means that Ground 7a has a minimum notice period of 4 weeks (for periodic tenancies) or 1 month (for a fixed term tenancy), and for Ground 14 proceedings can be commenced immediately after the service of the notice.
However, these Grounds will need to be proved in court to facilitate the granting of a Possession Order. Ground 7a is a mandatory ground, which means that the judge must grant possession if you can prove that the ground has been met. Ground 14 is a discretionary ground, which means that the judge can decide whether to award possession, if the ground has been met. For more information about the notice periods which need to be provided for anti-social behaviour under Section 8 of the Housing Act 1988 from 29 August 2020 please see Annex A.
Stage 1: Serving a notice of possession
You can give your tenants a Section 8 notice if you have a reason which corresponds with a specific ground; for instance, they have broken the terms of the tenancy. You can also give your tenants a Section 21 notice if you want the property back after a fixed term ends or during a periodic assured shorthold tenancy. It is also possible to serve both a Section 8 and Section 21 notice to your tenant. You can get legal advice about which of these options would be best to take given your circumstances.
You should bear in mind that, in an Assured Shorthold Tenancy, a tenant has a minimum of 6 months’ security. This means that the court will not make a possession order which takes effect before the tenancy has been in place for 6 months.
Serving your tenants with a section 8 notice
Section 8 notices In England
Under the provisions of the Coronavirus Act 2020, a notice seeking possession which was given to a tenant from 26 March to 28 August 2020 must have provided them with a notice period of at least 3 months. These provisions have now been extended, meaning that a notice seeking possession which is given to a tenant from 29 August 2020 until at least 31 March 2021 must provide a notice period of at least 6 months in most circumstances. However, there are exceptions to this in some instances:
If a landlord wishes to serve a new notice in order to take advantage of the new shorter notice periods required for certain serious cases, they should, where they are issuing a new notice of the same type, withdraw the first notice before they serve a new notice.
Landlords may find it helpful to seek independent legal advice regarding these matters.
For more information on the minimum notice periods for each ground, please see Annex A.
Section 8 notices in Wales
Notice periods given to tenants from the 26 March to 23 July must be at least 3 months for all kinds of notice. Notice periods given on or after 24 July 2020 must be at least 6 months, other than for grounds relating to anti-social behaviour which remain at 3 months.
How to serve a Section 8 notice
To give your tenants a Section 8 notice, you must fill in Form 3.
If you are serving a Section 8 notice in England, you can find the prescribed form 3 at: ‘Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy’.1
Important – you must complete the form correctly. Use the guidance notes on the form to help you.
You can get legal advice on how to fill in Form 3 and how to give it to your tenants. The possession process in Court may be delayed if you do not fill out the form correctly.
You may also choose to seek the advice of a professional association.
You need to specify on the notice the specific grounds you are using to seek possession of your property.
You can use mandatory grounds. These are grounds where the judge must order the tenants to leave your property if you can prove the ground. Examples include the grounds for 8 weeks’ rent arrears and convictions for anti-social behaviour.
You can also use discretionary grounds. These are grounds where the judge can only order the tenants to leave your property if you can prove a discretionary ground and the judge considers it reasonable to make an order. Examples include grounds for other breaches of the tenancy agreement.
Serving your tenants with a Section 21 notice
In light of the many difficulties caused by the COVID-19 pandemic, we urge everyone to show compassion and exercise flexibility as far as possible. We therefore encourage you to only seek possession where you have grounds to do so, having tried to resolve any issues with your tenant first. We strongly recommend that you only seek possession through a section 21 notice (without grounds) if there are no other alternatives to doing so.
Section 21 notices in England
Due to coronavirus (COVID-19), from 26 March 2020 to 28 August 2020 the minimum Section 21 notice period that you can give to your assured shorthold tenants was 3 months. From 29 August 2020 until at least 31 March 2021 the minimum notice period is 6 months. That means that there must be at least 6 months between the date your tenant receives the notice, and the date after which you specify they must leave the property. You can make a claim for possession in the county court if the tenant has not left by the date specified in the notice. However, if you have agreed with a tenant that a longer notice period will be given, for example if there is a written tenancy agreement that provides for a longer period of notice, that longer period will apply.
Section 21 notices in Wales
Notice periods given to tenants from the 26 March to 23 July must be at least 3 months for all kinds of notice. Notice periods given on or after 24 July 2020 must be at least 6 months for Section 21 notices.
How to serve a section 21 notice
You can only use a Section 21 notice if your tenants have an assured shorthold tenancy. You cannot use it if your tenants have an assured tenancy.
You can only use a Section 21 notice to ask your assured shorthold tenants to leave your property:
In England, you should use Form 6A to give notice if the tenancy was started or renewed after 30 September 2015. In Wales, you must explain in writing that you are serving an eviction notice under Section 21 of the Housing Act 1988.
Important – you must complete the form correctly. Use the guidance notes on the form to help you. You can get legal advice on how to fill in Form 6A and how to give it to your tenants. The possession process in Court may be delayed if you do not fill out the form correctly.
In England, your Section 21 notice will only be valid if you have:
If you served your notice on or after the 26 March 2020 until 28 August 2020, you should have provided your tenant with a minimum of 3 month’s notice. This is because of coronavirus (COVID-19).
If you served your notice before 26 March 2020, you should have provided your tenant with a minimum of 2 months’ notice.
If you served notice on or before 28 August 2020, you must generally make a claim for possession in the court within 6 months of giving the notice.
However, in the case of a periodic tenancy where more than 6 months’ notice is required, the proceedings may be started up to 4 months after the date specified in the notice as the date after which the tenant must leave the property.
In Wales, your Section 21 notice will only be valid if you have:
If you served your notice before 26 March 2020, you should have provided your tenant with a minimum of 2 months’ notice.
In a fixed term tenancy, you can serve a Section 21 notice at any time, but it cannot end until the end of the fixed term. In a periodic tenancy notice can be given at any time, but the appropriate notice period must be given and the date specified in the notice as the date after which the tenant must leave the property, must by the last day of a period of the tenancy.
Providing Proof of Service
You will need to be able to be able to show the court that you have served notice correctly and given the right amount of notice. This will assist the judge when making a decision on whether to grant a Possession Order. You should always check the tenancy agreement to see what methods of service it allows you to use – the methods mentioned below are the most common.
Keep a copy for yourself
You will need to provide a copy of the notice to the court as part of your application for possession. It is essential you retain a copy of the document for yourself. Take the copy once you have completed, signed and dated the notice.
Personal service on the tenant
If you are serving the notice on the tenants personally for example handing it to them, then the best way to prove the tenants have been served with the notice is to have the tenants sign and date all copies of the notice (including your own). Alternatively, if they refuse to sign the notice but do accept the document, then you can fill out a certificate of service (N215) form and include that in any paperwork you send to the court.
Posting to the tenant
You can usually serve the notice by first class post or by another next day delivery service. Consider taking dated and timed photographs as evidence of posting. If you decide to use a tracked service, one that does not require a signature is best and you should retain the receipt. You can fill out a certificate of service (N215) form and include that in any paperwork you send to the court.
Leaving the notice at the property
It is always best to see whether the tenant is at home before putting the notice through the letterbox. If the tenant is present, you can serve the notice personally. If you are serving by posting through the letterbox, consider taking photographs or taking a witness with you. You can fill out a certificate of service (N215) form and include that in any paperwork you send to the court.
If you deliver the notice by hand, consider attaching a handwritten note or writing on the envelope, explaining, for example, what the notice means, why you have served it and, where appropriate, whether you are willing to come to an agreement with your tenant in preference to commencing court proceedings. This may encourage the tenant to answer and respond.
You may also wish to consider informing your tenants about our companion guide, Understanding the possession action process: A guide for private residential tenants in England and Wales, which contains more information about the steps which a tenant should take when served with a notice seeking or requiring possession.
Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.
Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agentsLearn More