This is the third blog in the series relating to the completion of notices and gaining possession on the expiry of them. The first blog post was on completing a Section 8 notice and the second on completing a Section 21. This post will look at issuing court proceedings where the tenant has failed to vacate the property on the expiry of the Section 8 or 21 notice.
Tenancy
It is important to remember that a tenant under an Assured Shorthold Tenancy who does not leave on the expiry of a notice is still a tenant. They remain a tenant until the court makes a possession order and it is executed by a court bailiff or sheriff. Therefore, the tenant is not doing anything wrong by staying in place. The landlord must also continue to comply with all their obligations under the tenancy agreement such as those relating to repairs.
Possession Claim
Once the Section 8 or 21 has expired if the tenant has not vacated the property the next step is to issue court proceedings to recover possession. The Landlord will need to complete a claim form and the particulars of claim. These two forms will require certain information and documents in support of your claim and must be signed by the landlord. The landlord’s agent does not have the authority to sign these forms pursuant to the Civil Procedural Rules PD 22 “#22.3 If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence.”
A court fee is payable on submitting the claim form, particulars of claim and supporting documents. Once the court has issued the claim they will set a date for the possession hearing and send copies of the documents to the Defendant along with a defence form which they can complete and submit. The date of the possession hearing is likely to be between 28 and 56 days from the date the claim was issued.
Where possession is ordered at the initial hearing, the date for possession is usually 14 days thereafter. There are however, exceptions to this. Where an order for rental arrears is also sought, the landlord may ask the court to issue an order that any deposit held in a scheme is repaid to them.
Landlord’s can seek their legal costs for issuing a possession claim however, the court will most likely only award fixed costs for a simple possession matter, which could be less than you have incurred.
Accelerated Possession Claim
Where the landlord is relying on a Section 21 notice to recover possession they may consider issuing accelerated possession proceedings. Again, court forms need to be completed along with supporting documents and a fee paid. This is a quicker route because there is no hearing and the order issued by the court will only grant possession. Therefore, where rent arrears are sought, this may not be the best option.
The tenant may again defend the matter which could slow the process somewhat. A claim for legal costs can again also be made but the court may only award fixed costs and the court issue fee. If the landlord has not used a solicitor, then they will only be able to claim the court issue fee.
Recovering possession
If the tenant remains in the property beyond the date specified in the court order, the landlord will need to apply to the court for a warrant of possession. Again, there is a form that needs to be completed and a fee to be paid. The warrant will permit a county court bailiff to enter the property and evict anyone in occupation. The tenant is advised of the date and time the bailiff will attend and some tenants will leave before this date. Landlords are required to attend the property and provide access for the bailiff. Normally a locksmith will need to be brought along to open the doors in case the locks have been changed and to change the locks to the property after the warrant has been executed.
The application for a warrant can take some time due to the financial pressures faced by local county courts. Some landlords do therefore seek to instruct the high court sheriff in the alternative. However, instructing the sheriff requires the county court judge’s permission and this is increasingly difficult to obtain and can take some time. The fee for the sheriff is also much higher than that for the county court bailiff.
This is not a comprehensive guide on issuing possession proceedings. So, if in doubt always take legal advice at the earliest opportunity to prevent costly mistakes and delays.
