Landlords' Surgery: - getting possession (Part 1)

Securing possession of rented property is a legal minefield; get it wrong and you could goto jail!

There comes a time when a Landlord needs to get their rented property back. This could be due to the tenancy agreement coming to a natural end, or due to a breach of the agreement on the part of the Tenant. In any event there is a procedure, which needs to be followed. The procedure is designed to protect a tenant's home and failure to adhere to it could prove costly both financially and legally. Today Judicial Cat shows you how to secure possession when the fixed term of the tenancy has concluded. Next week the issue of securing possession when the Tenant is in breach of their agreement will be dealt with.

Assumptions

It is assumed that you are letting a property on an Assured Shorthold Tenancy agreement and that your Tenant has exclusive possession. In other words you do not live in the same property as your Tenant (a resident Landlord). Further, that you do not provide services such as cleaning, cooking, etc. Procedures relating to social tenancies, non protected tenancies, and licences are beyond the scope of this blog post.

Legislation

Housing Act 1988: - Section 21

Protection from Eviction Act 1977: - Part I

Civil Procedure Rules 1998: - Rule 55

My Tenant has not paid the rent for months, or the tenancy agreement has come to an end. Can't I just change the locks?

A health warning. In most cases it is unlawful to change the locks and evict your Tenant without first obtaining an Order for Possession from your local County Court. Even after this order has been obtained only the Court Bailiffs acting under the authority of a Warrant of Possession can carry out the physical eviction. If a Landlord (or any other person) evicts a Tenant without lawful authority then they risk substantial damages in a civil court and/or criminal proceedings, which on conviction in the Crown Court, could lead to imprisonment for a maximum of two years.

The fixed term of the tenancy has come to an end

Let's say you've granted a tenancy for 12 months and the fixed term has concluded. In order to lawfully terminate the tenancy agreement and gain possession of the property you must have first served a notice. Judicial Cat covered how to properly serve a notice last week: -

http://judicialcat.blogspot.co.uk/2012/05/landlords-surgery-how-to-correctly.html

Once the notice has expired you must issue proceedings in your local County Court (i.e. the court in the district the property is located). The procedure is known as the  Accelerated Procedure for Possession. This will allow a Landlord to secure a possession order in most cases without the need for a court hearing. You simply complete the relevant form and send three copies (or more if there is more than one tenant) to the County Court. You should also send a copy of the written tenancy agreement, a copy of the notice served, and a Certificate of Service (referred to in last week's blog post). Judicial Cat also suggests sending a Witness Statement outlining in detail how the notice was served. The relevant form can be found here: -

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n005b-eng.pdf

It is also absolutely vital that you enclose proof that any deposit has been protected; i.e. enclose a copy of the Deposit Protection Certificate. Failure to do this will mean that the Court is unlikely to grant a possession order. Any previous "section 21" notice will be invalid unless the deposit was protected at the time that the notice was served.

What happens next

The Court will pass the paperwork to a District Judge for review. If everything is in order the Court will make an Order for Possession. Usually this will be in terms that the Tenant leaves the property within fourteen days of the date of the order. Should the Court be in any doubt as to the facts then it is likely to schedule a hearing to resolve any issue identified. Your Tenant can defend the proceedings but only on very narrow grounds; e.g. the dates you rely on for the tenancy are wrong, you did not protect the deposit, or you failed to serve notice. If the Tenant defends the claim on these grounds then the Court will almost certainly fix a hearing. That is why it is important to get your paperwork in order.

And if the Tenant still does not leave

Well you would need to ask the Court to issue a Warrant of Possession. An appointment will then be made for the Bailiffs to attend and physically evict the Tenant. This is rare and your blogger has only needed to instruct Bailiffs once in the past five years!

COMING SOON: - getting possession when the Tenant is in breach of their agreement

Landlords' Surgery: - how to (correctly) serve a notice

Serving notices on your Tenant: - getting it right first time, every time

This week in Landlords' Surgery we look at the important issue of how to serve a notice on your Tenant. The main type of notices that need to be served on a Tenant are usually Notices Requiring Possession. These notices tend be called "Section 8" or "Section 21" notices in reference to the relevant sections within the Housing Act 1988. This blog post does not deal with the circumstances in which a specific notice should be used but rather how to validly serve the notice.

Relevant Legislation and Case Law

For any practitioners reading this blog post the relevant primary legislation are Sections 7, 8 and 21 of the Housing Act 1988. The key case law to be considered is: -

Wandsworth London Borough Council v Attwell (1995) 27 HLR 536

The main principle in Wandsworth is that the notice needs to be served in a manner designed to ensure it comes to the attention of the tenant.

The starting point is the Tenancy Agreement

It is a common misconception that a Landlord is entitled to simply post the notice by 1st class post, or even push it through the letterbox. The Tenancy Agreement needs to specify a method of service. Usually the agreement will state that good service is when the notice is served by Recorded Delivery (first class) pursuant to Section 196 of the Law of Property Act 1925. If this clause is not in your agreement then don't even think of attempting to serve the notice by post. In any event always use either Recorded Delivery or Special Delivery.

Service by the above method should be considered the bare minimum and only used as a last resort.

The "gold standard" is personal service on the Tenant

If you want to ensure that service of your notice is "bomb (or judge) proof" then personal service (i.e. physically handing the notice to the Tenant) is by far the best method. This requires a degree of co-operation and/or "luck". A Tenant (anticipating a notice) may simply not answer the door! I always suggest attending the property on a Sunday morning (between 9am and 11am) or a Monday evening (between 8pm and 9pm). 

If you have to post the notice through the letterbox

Next best method is to post the notice through the letterbox. If you do this then always take photographs. The notice should be held against the front door with the number showing when the photograph is taken. Make a note of the date and time as well as any distinctive features about the property or the vicinity. It is always best to try and take a witness with you when serving a notice; however, it is understood that this may not always be possible.

Certificate of Service is a must

When the time comes to commence Court proceedings then make sure you file a Certificate of Service. This is an absolute must. As well as this I will also write a quick Witness Statement explaining how the notice was served. You can find a Certificate of Service here: -

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n215-eng.pdf

I suggest keeping a copy for your own records.

The consequences of getting it wrong

Get it wrong and you will almost certainly lose your case! The Court has very limited discretion to dispense with the service of notices (no discretion at all for "Section 21" and rent arrears cases relying on mandatory ground 8). It is all to easy for a Tenant to file a Defence stating that they "never received the notice". Once that Defence is filed the Court is almost certainly adjourning (or even dismissing) your case unless you can prove that the notice was served. Don't cut corners! Making a mistake with the notice can mean that the Tenant remains in possession of the property for anything approaching a year, while you try and sort the mess out!

COMING SOON: -  how to regain possession of your property if a Tenant is in breach of their agreement!

County Court Money Claims Reforms

A little bit of Northampton forever in Salford

All change in the County Courts for issuing "money" claims

Although widely talked about for some months now within the legal profession, a major change to the County Courts system recently took place, which the vast majority of the public will have no idea about. This relates to the way claims for "money only" in the County Courts are issued and dealt with at the early stages.

No change to Money Claim Online (MCOL)

It is first worth noting that there has been no change to the way claims are processed by the online service Money Claim Online. This service can still be accessed in the normal manner by visiting: -

https://www.moneyclaim.gov.uk/web/mcol/welcome

The online service offers discounts on Court fees and is adequate for most everyday money claims.

Money claims now handled at Salford Business Centre

Since 19 March 2012 any County Court claim, which is for money only (either fixed amount or amount to be decided by the Court) MUST be issued via the new County Court Money Claims Centre in Salford, Greater Manchester. This new business centre will handle all of the early stages of a claim. This includes issuing the claim, taking any defence or admission, and receiving back the Allocation Questionnaire in claims that are defended. Claimants now start a claim by completing a new Form N1 (Claim Form) and sending it to the following address: -

County Court Money Claims Centre

PO BOX 527

SALFORD

M5 0BY

THESE PROCEDURES DO NOT APPLY TO CLAIMS ARISING FROM FAILURE BY LANDLORDS TO PROTECT TENANCY DEPOSITS: - separate procedures apply, please see Blog post below dealing with the protection of tenancy deposits.

You need to send enough copies of your claim for the Court and the Defendant(s). A major change is that Claimants will no longer receive a sealed copy of their claim form back from the Court. So make sure you keep a copy for your own records.

Claimants can find the relevant form here: -

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf

A Claimant is required to nominate a preferred Court for the claim to be transferred to if it is defended; however, this choice is subject to the usual rules concerning transfer of County Court Claims (usually a defended claim will be transferred to a Defendant's local court when the Defendant is an individual).

All money claims now issued in the name of Northampton County Court

When completing the form you enter NORTHAMPTON COUNTY COURT as the Court of issue. So, under this new system, the paperwork is processed in Salford and issued in the name of Northampton! A little bit of Northampton forever in Salford!

So how is it going?

During the pilot many legal professionals expressed concern that the new procedures would be chaotic. There were many complaints. Personally I have found this new system to work reasonably well. Claims seem to be issued consistently within two working days; far better than the inconsistent practices of the individual court houses! A tip I would give though is to send any paperwork to the business centre by recorded delivery!

Contacting the Court

A new contact centre has been set up to deal with claims issued by the business centre: -

0300 123 1372