Useful Information on Assured Shorthold and Assured Tenancies
Unless a Tenant voluntarily vacates a property then the Landlord must take steps to evict by way of legal proceedings and enforce any Possession Order by way of Bailiff.
Unless the Landlord follows this procedure then there is exposure to claims by the Tenant for damages for unlawful eviction and also harassment.Many Tenants obtain Legal Aid for such claims.In such instance, even if the Landlord succeeds in the claim, costs will not be recoverable from the Defendant Tenant.
The eviction procedure has to be technically precise and initially based upon a valid and technically correct Notice.If the Notice is incorrect then the subsequent legal proceedings will be invalid.
In our wide experience we find that the Courts err on the side of caution when evicting Tenants and Judges will often delay or refuse to make a Possession Order if there are any technical defects, ambiguities or inconsistencies.
The Section 21 Notice and Section 21 Legal Proceedings
This is a claim for possession based upon the fact that the current tenancy agreement has expired or is about to expire.The Landlord must give at least 2 months' clear notice. No other reason or ground is required by the Court. Provided the Agreement, Notice and proceedings are technically correct, then the Landlord will obtain a Possession Order. There is no exposure to Counterclaims slowing down or obstructing the Possession Order.
Note that no debt claim is included for arrears of rent or other breach of the tenancy agreement. It is the Landlord's option to commence debt recovery proceedings separately and outside of the Section 21 process.
The Section 8 Notice and Section 8 Legal Proceedings
This is a claim for possession based upon the fact that there is a breach of the tenancy agreement i.e. arrears of rent.
The law sets out certain grounds for possession, some of which the law considers serious enough to make a Possession Order ('mandatory grounds') and some of which allow a Judge discretion as to whether to make a Possession Order ('discretionary grounds').
Most commonly appropriate when the rent owing is at least two months in arrears (or 8 weeks if the rent is payable weekly). At this time a Section 8 Notice should be served.
In default of payment then proceedings should be issued. If at the time of the hearing, at least two months rent is still owing (or 8 weeks if the rent is payable weekly) then the Judge is obliged to make a Possession Order.
Importantly, the Section 8 legal procedure is exposed to Counterclaims by the Tenant. The Tenant might counterclaim for damages in relation to disrepair or harassment. This is likely to delay or circumvent a Possession Order and lead to a full Trial. It is not always advisable to issue Section 8 proceedings when a Landlord is aware of a dispute with the Tenant. The expense to the Landlord will be significant and often the Tenant will have the benefit of legal aid. In such instance the Landlord's legal costs are unlikely to be recoverable even if successful.
It is exceptionally difficult, not to mention costly, to obtain a Possession Order under Section 8 in respect of other breaches of a Tenancy Agreement (e.g. noise). Section 8 proceedings based on discretionary grounds usually result in a Judge exercising discretion in favour or the Tenant. We do not recommend proceeding this way.
Enforcement of a Possession Order
Note that a Bailiff must be used to properly obtain legal possession unless (for example) the Tenant has returned the keys to the property, which amounts to a surrender.
Court Bailiff
Commonly used because it is the most cost effective method of enforcement. A disadvantage is that the eviction attendance may take several weeks.
Private Bailiff
Used to short cut the time period above but both our fees and the private Bailiff's fees will be calculated on a time spent basis at the rate of approximately £100.00 plus vat per hour. The advantage is that legal possession can often be lawfully obtained within a matter of days, provided the correct procedure and forms are followed.
Costs
Whilst in most possession claims we charge a fixed fee, the costs awarded by the Court are less than our fixed fee. Realistically, given the financial position of most Tenants, the arrears are never recovered let alone the costs. Pursuing same on behalf of the Landlord is likely to result in throwing good money after bad.
Disclaimer
The contents of this web site are for guidance purposes only and are not to be construed as legal advice.
