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Everything You Need To Know About The Possession Action

If a landlord wants a tenant to remedy a breach of the rental agreement or vacate the rental property, there is an established procedure which must be followed.  The Protection from Eviction Act 1977 makes conduct that interferes with the comfort of tenants/occupiers, including the withdrawal of services etc, an offence where they are carried out by a landlord or their agent.   It is therefore essential that a tenant’s rights are respected at all times.  

The Possession Procedure is commonly referred to as the eviction procedure.  It is a formal legal procedure that every landlord must follow to terminate a tenancy where a tenant has refused to remedy a breach or surrender the property. Here’s a step-by-step guide:

a landlord filing a complaint against their tenant

Serving the Notice

The first thing a landlord should do is calmly engage with their tenant about any concerns they have with the tenant’s conduct which may constitute a breach of the agreement.  This approach can save a landlord time and money, but if things don’t work out, then a formal notice seeking possession should be served.  A formal notice seeking possession will normally entail a section 8 notice and/or a section 21 notice depending upon the circumstances of the parties.  One or other notice is the pre-cursor to formal enforcement activity through the county court.  It is essential the pre-action protocol.  Failure to undertake the pre-action protocol will undermine the chances for securing a favourable outcome later into the possession procedure.

The landlord can serve a Section 21 notice without providing any reasons (or grounds) for terminating the tenancy. A Section 8 notice is served when a tenant has failed to comply with the terms of the agreement or relevant Statute.

Submitting a Possession Claim

If a tenant fails to remedy the concerns or vacate the property by the date specified in the notices, the landlord may seek a possession order from the court.  A possession order notified the tenant they should leave but also offers the right for a landlord to instruct a bailiff to remove the tenant in the event they refuse to leave.

However, the court process is very much a two-way system and the tenant can file a defence to the claim, stating why they feel the grounds for possession order are invalid. They can even file a counterclaim.

The Review Day

Following the filing of the possession claim, the court will appoint a judge to evaluate the case file. Depending on the which procedure was adopted to file the claim then they may set a date when the parties physically come before the Judge or notify the tenant that a claim has been filed and offer them a window of opportunity to file a reply, which could constitute a defence and counterclaim.  Once the window of opportunity has elapsed the file will be put before a Judge who may decide to enter a Judgment in one or other parties favour, or list the case for a hearing so that the parties can stand before the Judge and clarify certain aspects of their position to allow for a decision to be finally made.

In all circumstances, a comprehensive case bundle must be filed by the Landlord detailing the chronology of events and the evidence they are relying upon to advance their claim.  The point being that it is for the landlord to prove that in law they are entitled to terminate the tenancy and evict their tenant.  Any shortcomings will only serve to undermine their position.  The onus being on the landlord to prove their case and not the other way around although a tenant may wish to provide evidence why they feel the landlord’s case does not have any merit or that they have failed to follow the right procedure to the letter.

person signing a tenancy agreement

The Possession Hearing

If the landlord and tenant cannot reach an agreement by the hearing date then the case could be determined by the court.  It is advised that all landlords are formally represented.  It is not to say that a landlord cannot sit before a Judge and represent themselves but it’s quite clear that legally qualified advocates secure a better outcome as they focus on the issue which matter and can deal with them within the required time frame.

A judge will decide whether or not a possession order should be entered at the initial hearing, but if there is insufficient time to deal with all the aspects of the case then further directions may be given and the case adjourned to another date when more time can be allocated whereby a decision can be made within the time frame.  Delays of this nature can be quite common if a landlord has failed to be robust enough with their submissions but also if there is potentially a case to be had by the tenant.

When a landlord proves that he is entitled to terminate the tenancy then a formal county court judgment will be entered setting out the date by which the tenant must leave the property.  In parallel, there may be a money judgment and an adverse costs judgment against the tenant which could have consequences for their credit file if not satisfied within a month of the judgment being entered.

Applying For a Warrant of Possession

When a tenant refuses to act on a possession order, a landlord can formally instruct the court to send one of its bailiffs to the property to remove the tenant.  The name given to this final stage is the Warrant for Possession.

If you’re looking for some guidance and want free advice on how to manage a difficult situation with your tenant, then Landlord Assist will be pleased to help you out. Our tenancy specialists in landlord and tenant law can quickly and successfully guide you through the minefield that is the tenant eviction procedure and other tenancy disputes.

From drafting tailored action letters, issue Section 21 notice and/or send Section 8 notice, filing possession claims to instructing bailiffs; we can effectively work through your predicament to give you peace of mind but without the financial burden.

Get in touch with us today to find out what we can do for you.

Consult our Landlord and Tenant team to find out how we can help you.