Effective Possession Claims – the Landlord’s perspective

If you’re a residential landlord, or a lawyer working for one, then you need to be able to deal with the difficult tenants. Now most tenants are perfectly decent people – like my daughters. They pay the rent, don’t smash the place up, and only disturb the neighbours rarely. You don’t need legal advice on how to deal with people like that, you just need to have a clear agreement with the tenants and then keep your side of the bargain – respond to enquiries and complaints, fix things that go wrong, return calls and so on. It isn’t rocket science, and if you do this then most tenants will be no trouble at all. Even if they are a little late with the rent then a prompt call will usually produce payment without having to do anything more, before matters get out of hand.

Difficult tenants are difficult in different ways. To keep this piece a sensible size I will concentrate on Assured Shorthold Tenancies (ASTs) as they are the most common sort of tenancy in the private sector. Other types are Assured Tenancies (usually public sector, or created by mistake) and long leases and I will deal with these on another occasion.

The main causes of friction with landlords are

  • not paying rent
  • anti-social behaviour (ASB) of various sorts
  • and not moving out when the lease comes to an end

However, the landlord has two big guns in his cabinet – s21 Housing Act 1988 , and Ground 8 Housing Act 1988. There are others, but these two are mandatory grounds – if you get the paperwork right then the judge has to give possession in 14 days (or up to 6 weeks if exceptional hardship is proved).  So try and pick these if possible, unless you want to keep going back when the tenant fails to make the payments, or keep the noise down, as promised in court.

s21

This depends on serving a valid s21 notice. This has to:

  • be in the correct form
  • be at least 2 months
  • expire when or after the fixed term ends
  • if the fixed term has ended when the notice is served, expire at the end of a tenancy period at least 2 months ahead

The last of these is very tricky – a monthly tenancy starting on 4th ends on 3rd of the next month. And what if the rent is payable on Fridays but a weekly tenancy actually starts on the Monday? There have been CA cases this sort of thing. Good notices have a savings clause – use one.

You have to make sure the tenants’ deposit is properly protected or you can’t use s21 and it is a good idea to avoid a counter-claim by sorting out any outstanding repair work before starting proceedings. And do make sure you can prove the notice has been served – if possible give it to the tenant and get a receipt – don’t just send it by post as any half-awake tenant will deny getting it and your claim will fail.

Having done this you have a choice – the accelerated court procedure where the paperwork is looked at by a District Judge without a hearing, or the normal possession procedure where you have to go to court. There are advantages both ways – if the paperwork is perfect then the accelerated version saves the cost of a hearing. However you can’t include a claim for any arrears of rent, the cost of a hearing is small given the number of agents now available, a hearing gives you a chance to clear up any doubts the DJ has, and at least locally, the accelerated procedure is no quicker, once you wait for the court to process things. You pays your money….

So a powerful weapon if you get the procedure right.  It is often worth going down this route even if you have other possible grounds, like  ASB, or a history of rent arrears, because if you get it right you will win.

Ground 8

This covers rent arrears – fairly serious arrears running to at least 8 weeks (weekly rent) or 2 months (monthly rent). You serve a prescribed notice (and prove you served it) and then if the rent is still 8 weeks/2 months in arrears 14 days after service you can start possession proceedings. If there is still at least 8 weeks/2 months  due when the hearing takes place you hit the jackpot and are entitled to a mandatory 14 day (or up to 42 day) possession order. And this still applies even if some of the original rent has been cleared and more has then been run up while you are waiting for the date.

There are advantages to this – you only have to wait 2 weeks rather than 2 months, and you can use the cheaper court fees of Possession Claims on Line (PCOL) – £100 against £175. But the downside is that if the arrears are reduced to less than the 2 months figure you are left with a discretionary ground 10 claim, which will usually lead to a suspended order at most. Always include grounds 10 (rent arrears) and ground 11 (irregular payment of rent) in the notice or you will be stymied by this. And of course if you really want the tenant out they can always stop you by paying the rent off in full. Which might be regarded as unfair.

Which to choose?

  • If you want possession, come what may, then it’s s21 every time. It may take longer and you may lose arrears of rent but it gets there in the end every time.
  • If you want the rent use Ground 8. It is very difficult getting rent out of former tenants after they have left. While they are there there is every incentive to try and clear or at least reduce the arrears, especially if they are getting Housing Benefit. They don’t want the hassle of moving out and finding another place and this is worth avoiding if they can. And tenants recognise that if they don’t pay the rent they will have to go.

And if you are a tenant?

Mr Loophole the speeding lawyer apparently reads police  manuals to show him what ought to happen. Tenants and their advisers will know that lots of landlords get things wrong. And many DJs are uncomfortable dealing with mandatory orders and do their best to find difficulties that wouldn’t have troubled them if they were exercising a discretion. So they are often on your side.

Advertisements

Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems.

1 thought on “Effective Possession Claims – the Landlord’s perspective”

  1. S21 every time – and so many people draft the notice incorrectly! I’m handling two professional negligence cases on this very point.

    The accelerated procedure is a very good process, but so many tenants continue to pay rent …. and so many Landlords accept it!

    Good practical post Alan – thanks!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s