A guide to securing possession of residential premises.
The Standard Procedure - Section 8 Housing Act 1988 (as amended).
As an alternative to the well known ‘Section 21’ procedure there are still a number advantages to using the standard procedure for obtaining a possession order via serving a ‘Section 8 Notice’. Common examples where this route may be suitable are as follows:
Rent arrears are outstanding from the tenant and these arrears are accruing
Damage has been caused to the property by the tenant
Your tenant's behaviour is putting you at risk of being in breach of your own obligations. (This ordinarily involves you being a leaseholder in a block of flats and having sub-let the premises to your own tenant. You would still have obligations to other leaseholders within the block, who could seek to insist that the covenants are enforced against you by the Landlord).
A Section 8 Notice allows you to claim both the rent arrears and possession of your property. The notice may be served on the problem tenant at any time during the term, if they are in breach of the tenancy agreement.
Your Section 8 Notice can be based purely on the rent arrears but must specify a date not less than two weeks from its deemed date of service by which the arrears must be discharged.
If your tenant owes more than two months' rent (if payable monthly), or more than eight weeks (if payable weekly), then the extent of the arrears equates to a mandatory ground for possession. The Judge is obligated to must make the Possession Order, subject to a discretion to allow your tenant up to six weeks to physically vacate the property. If however the level of rent arrears have been reduced by the time of the court hearing, the Judge again has a discretion as to whether to grant the Order at all. (As a Claimant you are under a duty to mitigate/minimise your losses and accordingly would have to accept any payments tendered during that material period).
If the level of rent arrears is disputed, or requires greater investigation, that element of the claim may be adjourned to a further hearing.
The tenant may at any time make proposals to discharge the arrears, which should be considered on both a commercial and tactical basis. Those repayment terms can be discussed and appropriate advice given to you to enable you to make an informed choice as to how you would want to proceed.
Sometimes the Section 8 Notice process can be used to terminate a tenancy due to your tenant’s behaviour, if it breaches their tenancy obligations. This could relate to anti-social or criminal behaviour, damaging the premises, or even keeping pets or uncontrolled pets. These types of breaches will necessarily automatically result in a Possession Order as they constitute a discretionary ground for possession. It be will for the Judge to consider whether the Possession Order should be granted.
Part of the Judge’s discretion will be to take into account how easy your tenant may find alternative accommodation, or at the back of his/her mind, the extent to which they will become a burden on the State. If there are only small level of rent arrears, or relatively ‘minor’ breaches of obligations within the tenancy agreement, the Judge may consider there are insufficient grounds to grant an Order. We will discuss the level of the breaches with you and advise as to your prospects and best tactics to employ to secure the Possession Order in any event.
Once an Order is granted, under the Section 8 Notice procedure, a date will be confirmed by which your tenant must vacate the property.
Should they fail to leave, we will need to apply to the Court for a Warrant of Possession, enabling the Court Bailiff to enforce the Order. Please note this can take several weeks to be implemented.
If a money Judgment has also been made in respect of the rent arrears and costs, it makes sense to try to enforce that Judgment whilst they are still in the property. (It can subsequently be difficult to enforce a Judgment against the tenant as you are unlikely to have their forwarding address. Accordingly, any landlord should try to secure as much information as possible about their tenant, including their full name, date of birth, any previous address, bank details and where they work. This can often help in subsequently tracking them down and recovering the Judgment award.
Should you have a problematic tenant you would wish to evict, please do not hesitate to contact our Litigation and Disputes team via Daniel Crook, DBC@kingsfords.net, Leigh Prebble-Benn LAP@kingsfords.net, or Graeme Weir GJW@kingsfords.net who would equally be happy to discuss matters with you on 01233 624545.