We are featuring a number of contributions from legal expert Hollie Wright on some of the most common legal issues that landlords have to be aware of when it comes to eviction. This blog is the second of our three-part series on serving eviction notices.
Our previous blog dealt with common questions surrounding possession notices. This time we focus on issues relating to the next step in obtaining possession – obtaining a court order:
What if I serve a notice requiring possession and the tenant doesn’t move out?
If the tenant doesn’t move out by the date in the notice you can apply to court for a possession order. You can use the Accelerated Procedure (only where a Section21 Notice has been served) or the Standard Procedure (where either Section 21 or Section 8 notices have been served).
What should a landlord consider before issuing a possession claim under a section 21 notice?
Have all of the statutory requirements (some of which must have been done at the beginning of the tenancy) been complied with? If not, then the section 21 notice may be invalid and the possession claim is liable to be struck out. Any errors should be remedied before a claim is commenced.
What should a landlord consider before issuing a claim under a section 8 notice?
The Section 8 procedure is more lengthy than the Section 21 procedure and will require a court hearing, possibly more than one if the claim is defended by the tenant. This can result in it taking more time to obtain possession.
The grounds for possession under section 8 are either mandatory (meaning the court must make a possession order) or discretionary (meaning the court has discretion to decide whether to make a possession order). The discretionary and mandatory grounds are set out in Schedule 2 of the Housing Act 1998. The most common mandatory ground is that the tenant is in arrears of more than two months’ rent.
If you are only relying on discretionary grounds you need to be aware that the court is not guaranteed to give possession, although it may do so, this will depend on the facts of each case.
Written by Hollie Wright
Real Estate Dispute Resolution
Howard Kennedy LLP