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Recovering possession of residential premises

Recovering possession of residential premises

An overview of the procedure (Author: Richard Anyamene)

At WH Lawrence, we deal with disputes involving recovery of possession of premises, and these often have a residential element – whether the premises have sole residential use, or are part of mixed use developments. Where residential occupiers are involved, there are a number of statutory hurdles and Civil Procedure Rules to consider before an owner can force an occupier to vacate. We consider some of these below.

Tenant or Licensee?

Generally speaking, if a person has exclusive possession of the premises and is paying rent – even if this is limited to payment of outgoings – they will be a tenant. There is no requirement for a tenancy to be in writing, and most residential tenancies will be Assured Shorthold Tenancies (AST’s) unless the rent paid is very high (more than £100,000 per annum), or less than £250 (or £1,000 in London). There is no need for the term of the tenancy to be fixed, and AST’s can be from week to week or month to month depending on when the rent is paid.

AST’s are subject to various statutory regulations, but for possession purposes, their main characteristic is that they can be terminated after expiry of the tenancy period (whether this is fixed or periodic) provided that this is done in accordance with the provisions prescribed by the Housing Act 1988. There need to be no grounds for obtaining possession other than expiry of the tenancy.

Where there is no exclusive possession (e.g. this is shared with a landlord) or a person is not paying for occupation, they may be a licensee. Although there is reduced statutory protection for licensees, it will still be necessary to serve notice terminating a license and (in common with tenants) a property owner cannot force a licensee (other than certain ‘excluded occupiers’) to vacate other than by obtaining a Court possession order, pursuant to the provisions of the Protection from Eviction Act 1977.

Notice requirements

For practical and statutory purposes, where an owner or landlord wishes to bring residential occupation to an end, they must serve written notice on the occupier requiring possession. Under the Protection from Eviction Act, a ‘notice to quit’ must be served at least 28 days prior to the required possession date, and this applies where a person occupies as a licensee. For an assured shorthold tenant, the statutory notice below satisfies this requirement.

For tenants, the provisions of the Housing Act 1988 apply. If the AST is for a fixed term, a landlord must serve a statutory notice requiring possession on the tenant at least 2 months prior to the fixed termination date (section 21(1)(b)). If the tenancy is a periodic AST (either because the fixed term has expired, or if there was no fixed term in the first place), a landlord must still give at least 2 months’ written notice. The date on which a section 21 Notice must expire in these circumstances was altered by the Deregulation Act 2015 which provides that the date specified in a notice under section 21(4)(a) (relating to a periodic AST) no longer needs to be the last day of a period of the tenancy where the tenancy has been granted on or after October 2015. The requirement is simply to give not less than two months’ notice. This applies equally to statutory periodic tenancies arising pre October 2015.

A Court will not grant a possession order unless it is satisfied that the above notice requirements have been complied with.

Rent Deposit requirements

The statutory regulations relating to rent deposits can have a significant effect on a landlord’s ability to recover possession of residential premises. Rent deposits are regulated stringently under section 213 of the Housing Act 2004, which requires any rent deposits paid by a tenant to be dealt with in accordance with an authorised scheme within 30 days of receipt, and for certain prescribed information to be given to the tenant relating to the administration of the deposit under the scheme.

Importantly as regards possession, unless the provisions of section 213 of the Housing Act 2004 have been complied with, a section 21 Notice under the Housing Act 1988 cannot be served by a landlord.

Prior to 2015, the provisions of the 2004 Act applied whenever a new tenancy subject to payment of a rent deposit came into being. This meant that a prescribed rent deposit notice needed to be served on a tenant where a fixed term tenancy came to an end and became a periodic tenancy simply because the tenant remained in occupation, even though no new tenancy agreement had formally been entered into.

S215B(1)(f) of the Deregulation Act 2015 now provides that where a “new tenancy” comes into being (this includes a statutory periodic tenancy), the requirements of s213 HA 2004 can be taken to have been complied with if this has been done in connection with an earlier tenancy. However, this does not apply where there has been a change of landlord (see s215B(4)(a)). If this has occurred, a new prescribed rent deposit notice needs to be served before a landlord can seek to terminate an AST (other than for certain breaches of tenancy or other statutory grounds under the 1988 Housing Act).

In short, where an owner seeks possession of a residential property subject to an AST, both the rent deposit position and the landlord history will need to be considered.

Court Procedure

As stated, if a residential occupier fails to vacate when requested to do so an owner cannot recover possession other than by obtaining a Court Order. Provided that the above requirements can be satisfied and the appropriate statutory or other notice requiring possession has been served correctly, the Court procedure for obtaining possession is relatively straightforward where this is required simply because of the expiry of a lease or a licence. This is because there is unlikely to be any sustainable defence to a claim.

Where a written AST agreement entered into after 1989 is in existence, there is an accelerated possession procedure for obtaining a Court Order under the Civil procedure Rules. This is available if a landlord does not wish to claim rent arrears as well as seeking possession (or considers that recovery of unpaid rent is unrealistic) and wishes to recover possession as soon as possible. Otherwise a ‘full’ Part 8 Claim is required. The advantage of the accelerated scheme is that the claim, and any defence is considered by a district judge without a hearing, which reduces the timescale for matters to come before the Court. If no defence is filed, or a defence has no obvious merit, this can result in a possession order being obtained within 6 weeks – which is relatively quick for a Court process.

If a sustainable defence is filed, or the ‘full’ Part 8 procedure is followed, this usually results in a Court hearing being fixed within 2 months or so. The problem can be that a tenant does not file a defence but turns up to Court on a hearing date. However, a well-prepared landlord may be able to seek and obtain a possession order at this hearing date if sufficient time is allowed, and the position is straightforward. Otherwise, the claim is likely to be allocated to the ‘fast track’; directions will be given for the submission of evidence by the parties; and it could take several months before obtaining a trial date.

One final issue for property owners to bear in mind is that even once a Court possession order is obtained, if an occupier still refuses to vacate, the owner cannot evict the occupier itself. The court bailiff for the locality is used to effect eviction, and this process can take up to 2 months itself, depending on which Court has jurisdiction.

William Lawrence