Guide to Recovering Possession of Residential Property10 mins read
This guide provides additional information in relation to the recovery of possession of a residential property let under an Assured Tenancy or Assured Shorthold Tenancy (“AST”).
1. Unlawful eviction
Under the Protection from Eviction Act 1977 it is a criminal offence (liable on conviction to an unlimited fine, imprisonment up to 2 years or both) to:
(i) Unlawfully deprive (or attempt to deprive) a residential occupier of their occupation of a property (or any part thereof);
(ii) Do any act calculated to interfere with the peace or comfort of the residential occupier or persistently withdraw or withhold services reasonably required for the occupation of the premises as a residence with the intent to cause the residential occupier to, inter alia, give up the occupation of the premises or any part thereof.
Accordingly, where a tenant fails to return vacant possession of a residential property after expiry of a relevant notice it will be necessary to pursue Court proceedings to recover possession of the property.
2. No fault possession – section 21 possession proceedings
In certain circumstances a landlord can seek possession of a property let under an Assured Shorthold Tenancy (“AST”) on a “no fault” basis without giving a reason. In order to do so a landlord must first serve a notice in accordance with section 21 of the Housing Act 1988 expiring on or after the end of the fixed or periodic term.
If a tenant fails to deliver up vacant possession by the date specified in a section 21 notice a landlord can apply for an accelerated possession order if they are not claiming rent arrears i.e. the only purpose of the claim must be to recover possession of the property with no other claim being made. The Court fee for such claims is £355.
Ordinarily in England, 2 months’ notice must be given to the tenant that they will be required to vacate the property.
A landlord cannot obtain a no-fault order for possession against a tenant in respect of a tenancy that commenced on or after 1 October 2015 if, inter alia, they have:
i. Not provided a copy of the Government’s “How to Rent” guide;
ii. Not served and energy performance certificate and/or gas safety certificate;
iii. Not protected any deposit (which must not exceed 5 weeks’ rent) received within an authorised Government Tenancy Deposit Scheme (where the tenancy was granted on or after 6 April 2007);
iv. Required and received payment directly (or to a third party) of a prohibited payment in connection with the tenancy.
3. Possession under section 8 of the Housing Act 1988
- Mandatory grounds on which a Court must grant an order for possession
- Discretionary grounds on which a Court may grant an order for possession
If possession cannot be claimed under section 21 of the 1988 Act possession of a property let on an assured tenancy or AST can be sought using one or more of the grounds set out at Schedule 2 of the 1988 Act. The possible grounds include but are not limited to:
Mandatory grounds on which a Court must grant an order for possession
Discretionary grounds on which a Court may grant an order for possession
4. Possession proceedings
If a tenant fails to deliver up vacant possession by the date specified in a section 21 or 8 notice a claim for possession can be issued with the Court. Details of Court fees can be found in HMCTS leaflet EX50 here.
The current issue fee in respect of a possession claim before the County Court is £355.
5. Secure tenancies
Notice requirements when possession is sought in respect of a property let under a secure tenancy are governed by section 83 of the Housing Act 1985.
Please do not hesitate to contact our experienced Disputes and Litigation Department on our mobile friendly number 033 33 22 1000 or 0800 987 8156 to arrange a meeting and speak to a solicitor in relation to any landlord and tenant dispute.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the contents, or for any consequences of relying on it, is assumed or accepted by Kew Law LLP.