How Landlords Can Regain Possession of Their Property in the Private Rented Sector

I see alot of people of facebook pages, very confused about how a landlord can gain possession of their property. The main confusion seems to be what notice to service and when, couple with the incorrect assumption that the notice itself is an eviction - it isnt

In the private rented sector (PRS), landlords can regain possession of their property in only two main ways: the tenant voluntarily leaves (typically after giving notice) or a court order is obtained. This article outlines the legal framework and steps landlords must follow to regain possession, focusing on the two key types of notices landlords can serve and the subsequent legal process.

Regaining possession of a property as a landlord in the PRS requires careful adherence to legal protocols. Whether through a Section 21 notice or a Section 8 notice, landlords must respect tenants’ rights and follow the court process to lawfully reclaim their property. By understanding the requirements and potential challenges, landlords can navigate the process effectively while ensuring compliance with the law.

Exclusive Possession and the Legal Basis

When a tenant signs a tenancy agreement they are granted exclusive possession of the property under the Law of Property Act 1925. This means the tenant has the right to live in the property as their own home during the tenancy. The introduction of the Housing Act 1988, which established the Assure shorthold tenancy (AST), added the "shorthold" element, allowing landlords to regain possession more easily under certain conditions.

However, even with these provisions, landlords cannot simply ask a tenant to leave. The law requires adherence to strict procedures to regain possession, ensuring tenant rights are protected.

---

The Two Types of Notices: Section 21 and Section 8

1. Section 21 Notice (No-grounds Eviction)
   A Section 21 notice allows a landlord to regain possession without having to prove any fault on the tenant’s part.
• Purpose: This notice is used when the landlord simply wants the property back, such as for selling it or moving in.
• Notice Period: A minimum of two months.
• Limitations: Landlords must comply with specific legal requirements, such as protecting the tenant's deposit in a government-approved scheme and providing necessary documents like the Energy Performance Certificate (EPC), Gas Safety Certificate, and "How to Rent" guide.
• Court Process: If the tenant doesn’t leave after the notice period, the landlord must apply to the court for a possession order. Hearings are generally not required unless the paperwork is disputed. The court typically grants a possession order with a 14-day deadline for the tenant to vacate.
2. Section 8 Notice (Fault-Based Eviction)
   A Section 8 notice is used when the landlord seeks possession based on specific grounds listed in the Housing Act 1988. These grounds include rent arrears, antisocial behaviour, or breach of the tenancy agreement.
• Notice Period: Varies depending on the grounds, ranging from 2 weeks to 2 months.
• Court Process: The landlord must prove the grounds for possession at a court hearing. The tenant has the right to challenge the grounds, as they often involve allegations of wrongdoing. For example, if the landlord claims rent arrears, the tenant can defend themselves by showing payments made or explaining extenuating circumstances.

Important Clarifications

• Section 21 and Section 8 Notices Are Not Eviction Notices
  Neither a Section 21 nor a Section 8 notice requires the tenant to leave immediately after the notice period expires. The landlord must obtain a court order to legally evict the tenant.
• Paying rent arrears to make it less than 2 months. If a landlord is relying on s8 for rent arrears, then the tenant must be in a minimum of 2 clear months arrears BOTH at the date the notice is issued and on the day of the court hearing. If the tenant pays enough towards the arrears to bring the balance below 2 months even by 1p then ground 8 of the section 8 notice will be invalid and unenforceable
• Tenants’ Rights
  Tenants are not obligated to leave the property until a possession order is issued by the court and any subsequent enforcement actions are carried out.

The Eviction Process

1. Issuing the Notice
   The landlord serves either a Section 21 or Section 8 notice, adhering to the required notice period.
2. Applying for a Court Order
• For a Section 21 notice, the landlord usually obtains a possession order without a hearing, provided all legal requirements are met.
• For a Section 8 notice, the court will hold a hearing where the landlord must provide evidence supporting the grounds for possession.
3. Court Decision
• In Section 21 cases, the court typically grants a possession order with a 14-day period for the tenant to leave.
• In Section 8 cases, the judge may award outright possession, a suspended possession order with terms (e.g., requiring the tenant to pay off rent arrears in instalments), or dismiss the claim if the landlord’s case is not convincing.
4. Enforcement
   If the tenant does not leave by the date specified in the possession order, the landlord must apply for a warrant of eviction. A court-appointed bailiff will then arrange a date to evict the tenant and return possession to the landlord.

Tenants giving notice to quit

·       Tenant can give notice to vacate the property, written into the AST will usually be provisions that tenants must follow to give notice correctly. This could using a break clause, giving notice to terminate early during a fixed term or to leave once then fixed term has ended and the contract has become periodic

 

·       Tenant DO NOT have to legally give notice if they wish to vacate on the last day of the fixed term  contract

 

·       Once a tenancy becomes periodic then legally a tenant only needs to give 1 months notice, usually inline with rent due dates, but tenancy clauses may vary on this

Double rent if tenants do not leave

If a tenant doesn’t leave after giving notice, landlords are entitled to charge the tenant doble rent on a day rate. This provision is provided under Distress for rent act 1737, but the landlord must advise the tenant that they intend to rely on this legislation, on the day the tenant gives notice – or the day the landlord acknowledges the tenants notice.

Key Considerations for Landlords

• Compliance with Legal Procedures: Failure to follow proper procedures, such as serving notices correctly or meeting legal requirements, can delay or invalidate the eviction process.
• Evidence for Section 8 Grounds: Landlords must present robust evidence to support their claims, especially for contested grounds.
• Judicial Discretion: Judges have the authority to issue suspended possession orders in certain cases, particularly for rent arrears or antisocial behaviour, allowing tenants an opportunity to rectify their behaviour.