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The proper procedure for eviction and possession explained by Newark's Larken & Co solicitor




The last two years have been particularly testing for many private landlords, says Lesley Purveur, a solicitor with Larken & Co.

With private renters having been hit by the pandemic, many have fallen into financial difficulty and struggled to pay their rent.

Lesley Purveur. (41841929)
Lesley Purveur. (41841929)

Emergency legislation was passed in 2020 to suspend new evictions from social and privately rented accommodation.

The challenges of the pandemic aside, recovering possession of rented residential property is not always a simple process.

Residential tenants, and most residential licensees are covered by the Protection from Eviction Act 1977 which makes it an offence to unlawfully evict a tenant.

The only lawful ways a landlord can recover possession of residential property are agreement with the tenant (surrender of the lease) tenant vacating the property (abandonment) or obtaining a court order.

There can be problems with establishing abandonment as it is not always easy proving that a tenant has gone. It would normally require a tenant to have handed back the keys, or to have completely removed all of their belongings and to have stopped paying rent.

Where landlords wish to recover possession of a residential property if, for example, the tenant is in arrears, or has breached other terms of the tenancy agreement, or the landlord simply wishes to recover possession to sell, etc, it is important that the landlord follows the required steps.

This includes:

l Serving notice on the tenant that possession is required (Notice of Possession);

l Issuing a claim for possession in the county court where the property is situated;

l Recovering possession after judgment.

Where a tenant fails to leave a property after the Notice of Possession expires, the proper procedure needs to be followed and a Possession Order must be obtained from the court before a landlord can try to take back the property.

There are generally two types of notice used to recover possession of a property ­— a Section 8 (a fault notice) and a Section 21 (a no fault notice).

A Section 8 Notice is usually served where a tenant is in breach of the terms of the tenancy, most commonly unpaid rent. Currently, where a tenant owes at least two months’ rent (if rent is paid monthly) both when notice seeking possession was given, and at the date of the court hearing, it is mandatory for a Possession Order to be made.

For a Section 21 Notice to be served, a tenant does not need to be in breach of the terms of the tenancy, but the notice must be served correctly to be legally enforceable.

Landlords must therefore ensure that they use the correct form, have completed the correct details, given the correct amount of notice, and served it correctly.

They must have dealt with any tenancy deposit and given the tenant information about the deposit (Prescribed Information), as well as providing the tenant with an energy performance certificate, a valid gas safety certificate at the commencement of the tenancy, and the appropriate government leaflets (How to Rent Guide).

Failure to ensure these requirements are met will make the Section 21 Notice invalid.

There are advantages and disadvantages to each notice and landlords should seek legal advice to ensure they deal with matters appropriately before the issue of possession proceedings.

Sometimes a warrant for possession allowing a bailiff to enter the property and evict the tenant needs to be issued. Landlords must arrange for a locksmith to meet the bailiff to change the locks following eviction.

Recovering possession is a complex area of law, and many possession claims fail because the correct notices are not given, or correct procedures followed.

Judges expect landlords to follow the proper procedure and are generally unforgiving if mistakes are made.

For more information or advice, contact Lesley Purveur on 01636 703333 or email lesley.purveur@lark en.co.uk



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