The procedure that is best for any given situation is not always straightforward to determine, and Hanne & Co. has a team that can advise on the most effective way of reclaiming possession. This post will give a brief outline of some of the options that are available.
Photo by Max Williams
The starting point for understanding possession proceedings is that different occupiers of residential property have different rights – in legal parlance an occupier either has no security of tenure, substantive security of tenure, or procedural security of tenure. Those with substantive security of tenure are typically tenants of local authorities or tenants in the private sector whose tenancy was granted under the Rent Act 1977. Substantive security of tenure means that a tenant cannot be evicted unless they have behaved in such a way as to meet certain statutory criteria for eviction.
If a landlord rents a room and he or a member of his family lives in the same house and shares living space then typically that occupier will be a lodger and not a tenant. A lodger in these circumstances is typically an excluded occupier and has no security of tenure – possession proceedings consist of giving “reasonable notice”, and no court order is needed. A cautionary note is that under the Protection from Eviction Act 1977 you must not use force against a person or property in order to remove them from their residential property. It is lawful to “shut out” an excluded occupier with no security of tenure, but not to use force to get him out of the property. To do so is a criminal offence.
An occupier may not be a tenant but may nonetheless not be an excluded occupier. Other types of licensee – those who are not excluded but are not a tenant either (such as, for example, a lodger who does not share living space with the landlord) – have a modicum of procedural security of tenure. In this situation possession proceedings involve serving a Notice to Quit to bring the licence to an end in no less than 28 days, and a court order is then required to evict them.
Most private landlords will generally have granted an Assured Shorthold Tenancy (AST) in respect of their rented property, and these occupiers will be tenants in the ordinary sense and a court order is certainly required. AST tenants have procedural security of tenure in that they cannot just be thrown out of their home but there is a very particular possession proceeding process that must be followed. The standard procedure – and the best, so long as it is available as an option to the particular landlord and in the particular circumstances – is to pursue possession under Section 21 of the Housing Act 1988. This is purely a procedural endeavour, and so long as the correct metaphorical (and literal) boxes are ticked (i.e. the Section 21 Notice is valid) there is no defence and proceedings will march inexorably to possession. There are, however, a great number of boxes that need to be ticked and the requirements need to be satisfied in a very particular way. Any deviation will mean that the validity of the Section 21 Notice is open to challenge by a tenant with effective legal counsel. This is why it is important for a landlord himself to take proper legal and professional advice even prior to the granting of an AST and at the moment he is first inclined to pursue possession – the alternative could prove very lengthy and expensive.
If a Section 21 Notice cannot be validly served (and the rules on this are complex), then a landlord will have to make use of Section 8 of the Housing Act 1988. The most commonly relied-upon grounds of Section 8 effectively grant AST tenants who are immune to Section 21 proceedings (because of some fault of the landlord or because they are protected by the contractual nature of the fixed term of the AST) substantive security of tenure. There are 21 grounds (from Ground 1 to Ground 17 with several additional grounds in between) and they range from rent arrears to a breach by the tenant of any other obligation of the tenancy, and to anti-social behaviour by the tenant. Some of the grounds merely offer procedural security of tenure and these typically require certain notices to have been served upon the tenant at the beginning of the tenancy, such as the Church requiring possession of a vicarage or a landlord needing to move back home.
Hanne & Co. Solicitors can provide advice and support on the correct procedure to use for recovering possession and can assist you in making sure that you choose the best option for your needs. Proper legal advice early on will save time and expense in your attempts to recover possession of your property.
