Problems can often arise in the relationship between two parties tied into a housing arrangement. Whether this relates to a dispute regarding rent or failed repairs on the property, PM Law can provide advice in the often complex field of housing law.
Landlord and Tenant Eviction claims: What’s the Process?
It should be noted that in the current environment, due to the Covid Pandemic, the Courts have considerable backlog of possession claims, and are running on reduced staff. This will lead to extended delays in reaching conclusions for possession claims. Government advice remains that landlords should endeavour to communicate with tenants in order to avoid the need to evict tenants, and should ensure they are aware of the tenant’s circumstances, along with how they have been affected by the Covid Pandemic. Payment arrangements for rent arrears are recommended if agreement can be reached between the parties, with the landlord agreeing to defer any eviction action for a specified time limit should the tenant adhere to the agreed payment arrangement, with a review to follow.
The time taken to progress a possession claim, will vary depending on which route is used to evict the tenant and the Court handling the case.
Section 8 of Housing Act 1998
Section 8 Notice is a fault based Notice, usually where the Tenant has breached the terms of their tenancy and therefore the Tenancy Agreement needs to end. There are various reasons that a tenant can be evicted Section 8, but is mainly used for unpaid rent arrears.
Currently under the Coronavirus Act, a Section 8 Notice must provide at least 6 months’ notice, as well as time for service. If the Tenant not leave after this, then a claim for possession can be issued.
Issuing a Claim
Once issued, the Court will usually list the case for an initial review hearing, between 4-10 weeks from the issue date. Following the review hearing the Judge will assess the priority of the claim and if they require any further information.
Prior to any review hearing it is necessary to provide the Court and the tenant with a full bundle of papers which support the claim, to include information as to how the Covid Pandemic has affected the tenant’s circumstances, along with an up to date rental statement for the last two years. Failure to provide this information will mean that the claim is delayed.
The tenant is able to submit a defence to any possession claim up to 14 days from the date of issue. Although it is also known that tenants can raise defences as late as at the actual hearing or in appeal to a possession order. Should this occur then the Court can adjourn a hearing until a later date causing significant delays to possession.
A further hearing will be ordered by the Court to take place around 4-6 weeks following the review hearing.
If the matter is straight forward then the Court will make a Possession Order at this hearing, providing a date when the Tenant is to leave the property by. The date is between 14 to 28 days, but can be up to 6 weeks if hardship is pleaded by the Tenant.
The Court can also issue a suspended possession order, which could state that as long as the Tenant sticks to a payment plan ordered by the Court then the possession order cannot be enforced.
Should the payment order be breached then enforcement of the possession order can proceed.
If the claim is for rent arrears, then the Court can order a money judgment alongside the Possession Order. This will mean that the Tenant will owe a specific amount of money consisting of any remaining rent arrears, court fees and your legal costs.
Section 21 of Housing Act 1998
A Section 21 notice is a no fault notice. The earliest a Section 21 Notice can expire is at the end of a fixed period tenancy. A s21 notice cannot be issued until at least 4 months of the commencement of any tenancy. Some tenancy agreements make provision in them, by way of a break clause, to allow the Landlord to issue a s21 notice prior to the end of the fixed term. It is advised that any break clause is assessed for its validity prior to issuing any s21 notice.
This notice cannot include losses or rent arrears and is simply to obtain possession of the property.
Currently, the notice must provide at least 6 months’ notice to the tenant to vacate the property as well as time for service.
The Deregulation Act 2015, also provides specific requirements which impact the validity of notices for tenancies after October 2015. The requirements are as follows:
• Deposit must be in a recognised scheme, providing a valid tenancy deposit certificate and prescribed information to the tenant within 28 days of commencement of the tenancy
• A valid EPC must be provided to Tenant prior to moving into the property
• Gas safety inspections must have been carried out at the property yearly (where appropriate) and the safety certificate issued to the tenant each time, especially one provided prior to tenant moving into property
• Provide a How to Rent Guide to the Tenant prior to start of tenancy.
• Repaid to the Tenant any prohibited payments that you may have charged them. For verification check the Tenants Fees Act 2019.
• Any Landlord receiving an improvement notice from a local authority must allow 6 months to pass prior to issuing a s21 notice.
Issuing a Claim
If the Tenant does not vacate the property after the notice, and the notice is valid with the requirements above, then a claim for possession can be issued.
The required papers must be filed with the Court and once issued, the Tenant then has 14 days from this date to file a Defence. However during the current pandemic, procedures have now altered to assist the Courts with the backlog of claims. A review hearing will be arranged around 4-10 weeks from the issue date.
The same process is required for the review hearing as stated in the s8 proceedings information.
If no Defence is filed then the Landlord can request the Court to make a Possession Order on the papers. However, the issuing of Orders is currently significantly delayed due to the volume of possession claims within the Court system.
If a Defence is filed, then the Judge will consider whether to issue a Possession Order anyway or to list the matter for a final hearing.
Enforcement of a Possession Order
If the Tenant remains in the property after the Possession Order has expired, then a Warrant for Possession will need to be obtained, in order for bailiffs to be instructed to remove the Tenant from the Property. It is usually up to 4 weeks before a Notice of Appointment is provided by the bailiff, following obtaining the Warrant.
The Notice of Appointment will provide a date as to when the warrant will be executed by the bailiffs. The bailiffs will then attend on the date with the Landlord to remove the Tenants if necessary for vacant possession of the property.
Please note, at this current time, whilst a full lockdown is in place, the Government has placed a ban on any eviction. This will remain under constant review and enforcement will only currently remain available under the following strict circumstances:
• Illegal occupation
• False statement
• Anti-social behaviour
• Perpetrators of domestic abuse
• Any property that is unoccupied following death of tenant
• Serious rent arrears greater than 6 months’ rent