Possession and Repossession

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A tenancy provides the parties to it with a number of important rights and obligations. One of these rights is control over the property, referred to as ‘possession’. During a tenancy the tenant has possession of the property, but once the tenancy has been terminated possession returns to the landlord.

The consequences of repossession of the property by the landlord can be substantial for both parties; the landlord benefits by regaining control over the property and is able to relet it, but this is likely to have a detrimental impact on the tenant and their family who may be left homeless.

Therefore, the law provides a number of protective measures for the parties in the form of common law obligations and the various statutory provisions for the termination of tenancies. The statutory requirements are particularly strict when the tenancy is brought to an end unilaterally by the act of one party rather than by mutual agreement.

Protection from Eviction

The default tenancy normally granted is an assured shorthold tenancy under the Housing Act 1988, and this form of tenancy provides the landlord with a legal right to get his property back at the end of the tenancy. There is also a means by which the landlord may be able to recover possession of the property before the end of the tenancy where the tenant has breached the tenancy agreement.

However, under the current legislation, tenants are given a broad degree of protection to their rights of ‘quiet enjoyment’ and possession of the property. There are various statutory provisions protecting tenants from eviction. These are such that, if the correct procedures are not followed, a landlord may even unlawfully evict his tenant unknowingly!

Only the courts have the authority to enforce the landlord’s right to get his property back from a residential tenant, and until such time a tenant may remain in possession.

The courts do not treat the process of the eviction of the tenant lightly, and the Protection from Eviction Act 1977 makes it a criminal offence for the landlord or his agent to assume these powers. As a result, it is very important for landlords to clearly understand their powers relating to the enforcement of possession, and to be able to act expeditiously if the situation arises.

Repossession

When a landlord wishes to seek repossession of a property, he must decide which repossession route is applicable in order to determine the appropriate notice to issue.

Statute provides two methods by which a landlord can unilaterally force termination of an assured shorthold tenancy, one of which can also be used in respect of an ordinary assured tenancy.

  • Section 21 Housing Act 1988 – this route can be used in respect of assured shorthold tenancies only, and is the normal route where there are no problems with the tenancy. Provided that the various standard requirements of setting up and terminating an assured shorthold tenancy have been complied with, this gives the landlord a right to regain possession of the property once any fixed term has expired. The landlord must serve a notice requiring possession on the tenant before starting possession proceedings. This must be in writing and, for tenancies granted on or after 1st October 2015 must be in a prescribed form. If the landlord does not serve notice on the tenant, where the tenancy is a fixed term assured tenancy, a statutory periodic tenancy will be automatically created at the end of the fixed term. See Letting Factsheet 21 - Section 21- Notice Requiring Possession of an Assured Shorthold Tenancy.
  • Section 8 – this route can be used in respect of ordinary assured tenancies as well as assured shorthold tenancies, and is usually used where the tenant has defaulted on the tenancy agreement (such as by failing to pay rent). This provision allows a landlord to bring a tenancy to an end, provided that the landlord can prove one of the 17 grounds specified in the Housing Act 1988.  The landlord must serve on the tenant a notice of his intention to seek possession, before starting possession proceedings, and this must be in the prescribed form. The notice must specify the particulars of the grounds under which possession is being sought, and must be served according to the time-limits required by the Act. See Letting Factsheet 8 - Claims for Possession: The section 8 Notice.

There is also another method by which common law tenancies, rather than tenancies under the Housing Act 1988, may be terminated:

  • Unilaterally – by either party giving notice to the other that they wish to terminate the tenancy, or by the landlord forfeiting the tenancy due to the tenant’s breach of the tenancy agreement.A tenancy can only be brought to an end by giving notice where the tenancy provides for this.
  • By surrender – by the voluntary agreement of both parties. A fixed term tenancy with no break clause or other provision providing for early termination will usually contractually bind the parties to the agreement, and the tenancy will not end until it has run its full course. However, where the parties agree, the tenancy can be terminated early by mutual agreement. Surrender cannot occur without mutual agreement, but this may be implied.
  • End of term – by the natural effluxion of time

If either of the statutory repossession routes under the 1988 Act can be used, it will be important to decide which court procedure is the most appropriate. In some cases, only one of the procedures will be available.

  • Standard Possession Procedure - The landlord will generally ask the court to issue a summons on the tenant. The court will then list the case for hearing and issue the summons. It will usually take between one and two months for the case to be heard. The case will be heard in open court, and both the landlord and tenant will have the opportunity to present their case in front of the judge. After hearing the case, provided that no further information is required by the court, a judgment will be given. If the landlord is successful, possession will normally be awarded at the end of a 28 day period. The tenant will also be able to claim for rent arrears and, if agreed, the judgment will order the tenant to pay the arrears. This standard possession procedure may be used for all three possession routes (common law, and sections 8 and 21 of the Housing Act 1988).
  • Accelerated Possession Procedure (APP) - This procedure was introduced to speed up the possession process for simple claims, generally under assured shorthold tenancies. The landlord submits the claim to the court in a similar way to the standard procedure. Normally, the case will be listed more quickly than with the standard procedure (typically within a month), and the judge will attempt to consider the case on the basis of the submission of forms, provided that the paperwork is in order and the tenant does not enter a valid defence. The accelerated possession procedure generally provides a quicker possession route, but it is subject to several important restrictions. The accelerated possession procedure:

-  cannot be used to recover rent arrears. If a landlord requires possession quickly, a successful accelerated procedure will provide the claimant with possession but a claim for rent arrears must be brought under a separate action (e.g. Small Claims Court).

-  is generally only of use when the property is let on an assured shorthold tenancy and the fixed term has come to an end. In this case, the court will normally require that the respective notice under section 21 has been served on the tenant. This procedure therefore does not assist the landlord where the tenant has defaulted during the fixed term, unless the expiry date happens to be sufficiently close.

-  cannot be used to recover possession of any assured tenancy when relying on the 18 grounds listed in the Housing Act 1988, following the implementation of the Human Rights Act in 2000.

-  cannot be used to recover possession of ordinary assured tenancies.

-  requires that the tenancy agreement is in writing.

As of April 2009, a Pre-Action Protocol applies to claims for possession.

Relevant Factsheets

Factsheet 8 - Section 8 Notices

Factsheet 14 - Squatters and the Law

Factsheet 20 - Possession actions for residential property

Factsheet 21 - Section 21 Notices

Factsheet 42 - Pre-action Protocol