If a landlord wishes to reclaim their property, then they must issue an application for possession through the local court. There are many reasons why a landlord may want to take possession, including the tenant failing to keep up to date with scheduled rent payments or the property falling into disrepair. The process the landlord must use depends upon how and why the landlord is reclaiming the property.
It's vital for a landlord to follow the proper process during possession claims. Depriving someone of their home is a serious matter and if the correct procedure is not carried out then the landlord may become susceptible to claims for general, exemplary and aggravated damages from the tenant. Seeking legal advice at an early stage is essential to ensure the possession process goes ahead without mishap and within the law.
Possession processes with Oratto member lawyers.
A solicitor experienced in possession proceedings is invaluable in cases where the landlord is looking to evict a tenant. The lawyers featured on this page are all highly skilled in possession proceedings for residential and commercial premises. They will be able to ensure that proper processes are being followed correctly right from the start for the most effective eviction procedure. You can choose a solicitor for possession proceedings from the list on this page, or you can submit your details directly to Oratto and we will select the best lawyer for your needs using our Oratto Match function.
Whichever method is used you will have access to high quality, experienced legal services and you will be in control of who you instruct.
The preparation and personal service of notice to end a tenancy.
Most tenancies are assured shorthold tenancies. This means that for the tenancy to be ended a formal notice must be served upon the tenant. There are two methods of achieving this, through either a section 8 notice or a section 21 notice.
Section 8 – this is a ‘fault' notice and the tenant must be in breach of their agreement somehow for this to be appropriate. The breach normally consists of failure to pay rent or the property falling into disrepair. If a court order for possession is issued, the tenant will have just 14 days to vacate the property – unless they successfully plead exceptional hardship.
Section 21 - this is a ‘without fault' notice. After the expiry of a set period of time, the landlord can claim possession of the property without giving any reason.
The two notices can be combined and a Money Judgment used to recover unpaid rent. Your chosen Oratto member lawyer will be able to advise you specifically based upon an assessment of your precise circumstances.
It may seem an outdated concept, but using personal service to deliver the notice is almost always the best method. This prevents the tenant being able to argue that there was no effective service. If the full and proper processes are not followed, then the tenant could claim harassment if the landlord tries to reclaim the property.
A claim for possession can be made at the court which is local to the property in question. A landlord is almost guaranteed to need a court order to be able to change the locks and reclaim the property.
Accelerated possession proceedings.
Under a section 21 notice, accelerated possession proceedings can be used. They cannot be used if there has been a breach of the tenancy agreement. Unless there is a defence to the claim then the court will most likely proceed without a hearing which results in the matter being resolved far more quickly.
Standard possession proceedings
This process is normally used to recover payment of any rent arrears. Proceedings will be issued and the hearing is usually 4-6 weeks later. Possession is normally awarded at the first hearing if there is no defence. The landlord must have evidenced the tenancy and the matter for which he is claiming. If the court feels that there are substantial grounds for defending the claim, or there is a bona fide dispute, then the case is likely to be adjourned to a later date.
The solicitor who you've selected will be able to explain which process is the right one for you.
Order for and obtaining possession
An order will generally be granted for possession 14 days after the date of the first hearing, unless the tenant pleads exceptional hardship. If there is any unpaid rent, then the landlord can ask for the tenancy deposit to be put towards the arrears.
If, by this point, the tenants have not vacated the property voluntarily, then it's likely that a warrant of possession will need to be enforced. This involves a bailiff visiting the property around 4-8 weeks from the date the warrant is issued and evicting anyone found there. The landlord must attend the property to meet the bailiff and arrange for someone to change the locks.
There is the potential for this to be a costly process and the court provides for the recovery of costs in some circumstances.
Contact Oratto today for swift, accurate advice on any type of possession proceedings.