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Recovering possession of a rental property

Recovering possession of rented residential property is not always a simple process. At "common law" a person with a right to possession of property can bring proceedings to regain possession of that property from the occupiers. The common law is refined by various statutes. To claim possession the occupier must have no right to occupy the property. Either the occupier never had any rights (squatters) or those rights must have come to an end. The landlord is normally required to serve a notice and then, if the tenant fails to leave, to pursue possession proceedings through the Courts.

Residential tenants and most residential licencees are covered by the Protection from Eviction Act 1977. This makes it an offence to unlawfully evict a tenant. The tenant would also be entitled to sue for unlawful eviction. Lodgers who share the property with the landlord are excluded from the Act.

The only lawful ways a landlord can recover possession of residential property are by agreement with the tenant (surrender), upon the tenant vacating the property (abandonment) or by obtaining a court Order. Abandonment is a problem because of the difficulty of actually proving the tenant has gone. It would normally require the tenant to have handed back the keys or to have completely removed all of their belongings from the property and to have stopped paying rent.

Tenants of private landlords are either assured tenants or assured shorthold tenants under the Housing Act 1988. To regain possession from an assured tenant you have to serve notice (called a section 8 notice) and prove that either a mandatory or discretionary ground for possession are made out. Where the ground is discretionary you also have to show it is reasonable to make an Order. With an assured shorthold tenancy you can either seek possession as if it were an assured tenancy or serve at least 2 months clear notice (called a section 21 notice) that cannot expire within the initial fixed term of the tenancy, advising the tenant you wish to recover possession of the property.

At the end of the tenancy a tenant is entitled to vacate without prior notice, unless the tenancy agreement states otherwise. Even if the term of the tenancy has come to an end, if the tenant does not vacate the premises the landlord has to apply for a Court Order to regain possession. Where the tenant still fails to vacate the landlord has to apply for the Court bailiff to evict the tenant.

Section 8 and 21 notices are forms of Notice to Quit. They control how a landlord can serve notice to terminate a tenancy. Unless there is a tenancy agreement stating otherwise, the tenant can serve a Notice to Quit at any time, subject potentially to the fixed term. The Notice has to be in writing, be for a "period" of the tenancy and be for not less than 4 weeks.

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Grounds for Repossession

There are 17 grounds for possession as laid out in the Housing Act 1988 & 1996. They set out what circumstances should exist to allow a landlord to legally start possession proceedings of their rental property, let under an Assured Tenancy or Assured Shorthold Tenancy. Grounds 1-8 are mandatory grounds in other words the court must give possession to a landlord if they are met and grounds 9-17 are down to the discretion of the court. The landlord must serve notice seeking possession of the property on the tenant before starting court proceedings. A landlord must give the tenant the following amount of notice:

Grounds 1,2,5,6,7,9 and 16 - 2 months notice

Grounds 3,4,8,10,11,12,13,15 & 17 - 2 weeks notice

Ground 14 –On service

Grounds

Mandatory Grounds

Ground 1 - the Landlord Residence Ground

If the property was the landlord’s only or principal home before the tenancy began or it is needed to live in as their or their spouse’s only or principal home. A new landlord who bought the property during the tenancy cannot rely on this ground.

Ground 2 - the Mortgage Ground

Where the rental property is subject to a mortgage, which was granted before the tenancy started and the mortgage lender wants to sell it in vacant possession, normally to pay off mortgage arrears.

Ground 3 - the Holiday Let Ground

The tenancy is for a fixed term of not more than 8 months and at some time during the 12 months before the tenancy started, the property was let for a holiday.

Ground 4 - the Student Letting Ground

Allows a landlord, which is an educational institution, such as a university or college, to recover possession where the tenancy is a fixed term tenancy of not more than twelve months and during the twelve months prior to the tenancy the property was let to a student.

Ground 5 - the Religious Use Ground

The property is held for use by a minister of religion and he/she now requires the property to live in as a residence from which to perform their duties.

Ground 6 - the Redevelopment/Renovation Ground

When a landlord intends to demolish or redevelop the whole or a substantial part of the property and cannot do so with the tenant living there. This ground cannot be used when the landlord (or someone before them) bought the property with an existing tenant, or where the work does not require the tenant to move out. If a possession Order is made the landlord must pay the tenant's reasonable moving expenses.

Ground 7 - the Inheritance Ground

The former tenant, who must have had a contractual periodic tenancy or statutory periodic tenancy, has died in the 12 months before possession proceedings started and there is no one living there who has a right to succeed to the tenancy.

Ground 8 - the Arrears Ground

The tenant must owe at least 2 months rent if the tenancy is on a monthly basis, 8 weeks rent if it’s on a weekly basis, or 3 months rent more than 3 months in arrears if on a quarterly basis, both when the landlord gave notice seeking possession and at the date of the court hearing.

Discretionary Grounds

Ground 9 - the Alternative Accommodation Ground

There is suitable alternative accommodation available for the tenant, or will be when the court order takes effect. When considering if the accommodation is suitable, the Court would need to be satisfied the new property is of a similar type and price, give the same type of tenancy and would be equally convenient to the tenant's place of work. Where possession is ordered the landlord also has to pay the tenant's moving costs.

Ground 10 - the Poor Payer Ground

The tenant is behind with their rent, both when the landlord serves notice seeking possession and when court proceedings begin.

Ground 11 - the Late Payer Ground

The tenant is persistently late in paying the rent. This is usually relied on as a back up to grounds 8 and 10. There do not have to be arrears at the time of service of any notice, commencement of proceedings or the possession hearing as long as it can be established that the tenant has either failed to pay rent for an extended period or has been persistently late in paying rent.

Ground 12 - the General Breach Ground

The tenant has breached any of the terms of the tenancy agreement except the obligation to pay rent. As long as the agreement has been breached the Court can Order possession even if it has been rectified by the time of the possession hearing.

Ground 13 - the Tenant Damage Ground

The tenant has failed to look after, or has damaged the property or any common parts. This includes damage caused by anyone staying with tenant and would include damage caused in shared external hallways etc.

Ground 14 - the Bad Behaviour Ground

The tenant or a person staying with or visiting them, causes or is likely to cause a nuisance to someone either living in or visiting the locality. Or they have been convicted of using the property for illegal or immoral purposes or have committed an arrestable offence in or near the property.

Ground 14A - the Domestic Violence Ground

When tenants are a married couple, civil partners or co-habitees and one of them leaves permanently because of domestic violence or the threat of domestic violence by the other towards them or any of their family living with them. This ground can only be used by landlords who are non-profit registered providers of social housing, registered social landlords or charitable housing trusts. Other landlords shouls use ground 12 or ground 14.

Ground 15 - the Furniture Damage Ground

Furniture in the property provided by the landlord as part of the tenancy, has been damaged by the tenant or any person staying with them.

Ground 16 - the Former Employee Ground

The property was let to an employee of the landlord, or a former landlord, and then ceases to be an employee of the landlord.

Ground 17 - the Lying Tenant Ground

The tenant gives a false statement to induce the landlord to enter into the tenancy or encourages someone else to do so. It is necessary to prove inducement, so the most obvious example would be where the tenant encouraged someone to give a false reference for them.