Routes to Possession and Eviction - Part Two

What's new ?

Since our last series of articles on the law of possession actions, there have been several fundamental changes to the court procedures and rules, although the basic routes (under sections 8 and 21 of the Housing Act) remain intact, as does the basic requirement that a landlord must obtain a court order before he can remove his tenant from the property - hence the importance of being familiar with the rules and the overall process !
The key changes are:

  • from Oct 2001, landlords may now only use the APP procedure for possession actions under section 21
  • Court rules and forms have been completely revised.  The new rules are now called the Civil Procedure Rules - CPR, and legal terms such as 'plaintiff' have now been replaced by more understandable terminology - 'claimant'.
  • Courts have become more accessible.  Court forms are now available on the internet and some court procedures such as small claims and the APP can now be initiated electronically.

Unfortunately, there are still long delays in obtaining a court hearing in many areas and landlords suffer additional hardship from this problem.  Unlike other forms of debt recovery, the level of rent arrears and potential loss grows with each week that the hearing is delayed.

Possession routes

In the last issue of Letting Update we looked at the requirement to serve notices before commencing court proceedings.  To recap, there are only two possession routes available to the landlord who has let to tenants under an assured shorthold tenancy.  These are:

  • Section 21 route
  • Section 8 route

It is important that the landlord decides which route he is adopting, and serves the appropriate notice before bringing possession proceedings.  There are advantages and limitations to each route.

SECTION 21 ROUTE.  When the landlord wishes to obtain possession of a property let on an assured shorthold tenancy at the end of the fixed term or after it has expired, he must serve on the tenant a notice under section 21 of the Housing Act 1988.  This notice must be written, and it must be served at least two months before the tenancy is to come to an end.  If the notice is given during the original fixed term of the tenancy, it simply takes effect at the end of the fixed term or two months after it is served, whichever is the later.  However, if it is served after the fixed period of the tenancy has expired and the tenancy has therefore converted into a statutory periodic shorthold tenancy, the notice must expire on the last day of a period of the tenancy and state that possession is required by virtue of section 21 Housing Act 1988.

The advantage of using this route is that every AST landlord has a right to be granted possession at the end of the tenancy under s.21 - i.e. there is an element of certainty.  The disadvantage is timing; between 2 and 3 months notice must be given before proceedings can be commenced.

SECTION 8 ROUTE. When the landlord wishes to recover possession of a property where the tenant is in breach of a term of the tenancy (such as non-payment of rent or breach of some other term of the tenancy), then section 8 is the appropriate route.  The section 8 notice, requires the landlord to allege a ground for possession he relies on, and he will then need to prove this at the possession hearing. 
The section 8 route is also the appropriate route for landlords who wish to recover possession of a tenancy let on an ordinary assured tenancy.

Which route ?

The choice of route will be dictated by a number of factors.  These include:

  • type of tenancy
  • reason for landlord wanting property back
  • whether there are rent arrears

For example, the section 21 route may only be used for assured shorthold tenancies, and where the tenancy has reached the end of its term, or is periodic.  Whereas, if there is a breach of the terms of the tenancy early during the initial term of the tenancy (e.g. rent arrears), a landlord may have no choice but to use the section 8 route.  Equally, where the tenancy is at an end, and notice has already been given, section 21 will be the obvious choice.

In situation where both routes could be used (e.g. rent arrears during a periodic tenancy), then the landlord may consider length of the court process as the deciding factor between the two routes.  The s.21 route using the APP procedure will generally be quicker (but any rent arrears would have to be recovered under a separate small claims action.  For any case, the decision will depend on individual circumstances.

Other routes, other tenancies
What if the tenancy is not an assured or assured shorthold?  If the landlord is a resident landlord, the position is quite straightforward as the landlord does not normally need a court order to recover possession; he is permitted to remove the tenant and his belongings from his own house.
For other types of tenancy (e.g. a company letting, or a letting under high rent) the common law rules for termination will apply.  Landlords will need to serve a notice to quit, which, once expired, will permit the landlord to bring possession proceedings under the 'standard procedure' explained below.

Which procedure

Having served the required notices, the landlord must then decide which court procedure to adopt.  There are two standard procedures:

  • Accelerated Possession Procedure
  • Standard Possession Procedure

Accelerated Possession Procedure (APP)
The advantages of the APP are that it is quick and, if the grounds are made out, the order for possession is made on the basis of the claimant's affidavit supporting his claim for possession.  The disadvantages of the procedure are:

  • it applies only to assured shorthold  tenancies terminated under s.21
  • the claimant cannot also make another claim in the proceedings (such as for arrears of rent).  If the claimant wants judgement for rent arrears, he must sue for them separately.

Standard Possession Procedure
Otherwise known as a 'Fixed Date Action'.  Unlike the APP, this route may be used in conjunction with either the s.21 or s.8 routes.
The advantage of this procedure is that the claimant may recover possession of the property and obtain judgement for any arrears of rent in the same action, and for the same court fee.  The main disadvantages of the procedure are that it takes longer than the APP and requires the landlord or his agent to appear in court.
If the APP procedure can be used, more landlords adopt this method on the basis of its simplicity and shorter timescales.  In many county courts, there are substantial delays before fixed date hearings can be obtained.

APP: Issuing proceedings

The claimant cannot issue proceedings until the section 21 notice has expired.  The procedure is now governed by Part 55 of the Civil Procedure Rules.  The CPR rules provide that certain information must be included in the application to the court.  This information in turn is set out in the prescribed form of application, form N5.  To issue proceedings the claimant must file with the court the following:

  • the application in form N5;
  • a supporting affidavit; and
  • the court fee

The claimant must leave a copy of the application and supporting affidavit for each defendant, as well as the court.
The documents are not difficult to complete.  If the claimant engages a solicitor, he can claim fixed costs for issuing the proceedings.  The affidavit is a pro forma printed document with notes for guidance available separately. The forms can be downloaded from the Court Service web site at www.courtservice.gov.uk.

In all cases the claimant must confirm:

  • the address of the premises;
  • the date of the tenancy; and any changes made to the tenancy terms;
  • the fact that the tenancy commenced after 15 January 1989;
  • the date the tenant first occupied the premises.

Further, the claimant must attach to the affidavit the following documents:

  • the written tenancy agreement;
  • in the case of an AST created prior to 28.02.97, the section 20 notice;
  • the section 21 notice

The affidavit must then be sworn in front of a solicitor.

Which court?
Possession proceedings are generally held in the county court, which has jurisdiction to hear and determine any action for the recovery of land by virtue of section 21 of the County Courts Act 1984.  The correct court to use is the court for the district in which the land is located. 

Further action
The court serves the tenant (as defendant) with a copy of the completed APP application and a reply form (form N11).  The defendant is deemed served with the documents 7 days after they are posted to him, and he then has 14 days in which to file his reply to the court.  If he does so, the court will send a copy of it to the claimant.  The court will inform the claimant of the date the summons is posted to the defendant.

The claimant should highlight in their diary the date when the tenant's 14 days deadline expires, for, after that date, he has the right to file a written request for possession.  The effect of this is that the papers are then referred to either the district judge or the circuit judge for his decision.  If the defendant has filed his reply before the claimant has requested possession, it will be included in the judge's papers, and a copy will be sent to the claimant.  If the defendant is too slow, no account will be taken of his reply.

The date of the tenancy is crucial for assured shorthold tenancies.  The court cannot make an order for possession which takes effect earlier than 6 months from the beginning of the tenancy or, if it is a replacement tenancy, 6 months from the beginning of the original tenancy - section 21(5) Housing Act 1988.

The judge's decision
The judge bases his decision on the papers before him.  If the claimant has made out his case he will obtain an order for possession.  If the case has not been made out, the court will adjourn, fixing a date for a hearing and making any directions for steps to be taken before the hearing as it thinks appropriate.  To prove the case, the claimant must be able to show that s/he has complied with the statutory requirements;  I.e.

  • the tenancy is indeed an AST, and if created prior to 28th February 1997, that a valid section 20 notice was served prior to the tenancy;
  • that a valid s. 21 notice was serve
  • that proceedings were issued after the section 21 notice had expired;

Standard Possession Procedure

Using the standard possession procedure (or 'Fixed Date Action'), the claimant may recover possession of the property and obtain judgement for any arrears of rent in the same action, and for the same court fee.  However, the court process takes longer than the APP since it requires an appearance in open court, before either the district judge or the circuit judge.  Inevitably some advocacy is required at the hearing.

Issuing proceedings
The claimant cannot issue proceedings until after the section 8 notice has expired.  Remember that he then has one year within which to commence court proceedings.  If he fails to do so within this time, the old section 8 notice is of no effect and a fresh section 8 notice must be served.  When issuing proceedings the claimant must file with the court the following:

  • summons for possession in form N5;
  • completed Particulars of Claim; and the court fee

Copies should be provided for the court and each defendant.  The summons is relatively simple to complete.  The claimant completes his and the defendant's names and addresses in the appropriate boxes, identifies the address of the property he is seeking to recover in another box, and, if he instructs a solicitor, claims the fee from the defendant for issuing proceedings.
The Particulars of Claim are now less problematic than had been the case.  The claimant should complete the standard court form N119 which now covers both rent arrears and other claims for possession.  This is simple to complete; like the form N5, it involves completing blank boxes in the form.  The important information which the court requires includes:

  • a list of missed payments, or payments that have not been received in time.  This is best done by providing a schedule, setting out the dates when rent is due, the amount due, the amounts and dates when rent was received, and a running account of arrears owed.  Set this out clearly, in neat columns, as in a rent book to impress the judge;
  • details of all steps which have been taken to recover the arrears.  This includes providing the details of all previous court proceedings, including the case numbers, the dates when proceedings were begun and concluded, the outcome and the terms of all orders made;
  • details of the defendant's circumstances known by the claimant.  This information should include financial details, including his employment and earnings, whether he receives any state benefits and amounts of any Housing Benefit received.  The court also requires "other" circumstances, which will include the number of people who live with or are dependent upon him;
  • details of the claimant's financial circumstances, if he wants these taken into account.  These will include his finances and why he requires possession of the property.  It is wise to complete this section in full if relying upon a discretionary ground for possession.
  • identification of the land sought to be recovered;
  • a statement that it consists of or includes a dwelling-house;
  • details of the tenancy, including the date it began and the amount of rent payable; and
  • the ground on which possession is claimed.

In addition, it is necessary to plead that the tenancy is either an assured or assured shorthold tenancy within the meaning of the Housing Act 1988, and the date of the section 8 notice.

Further action
The court will serve the summons and Particulars of Claim on the defendant, together with a form of reply.  The court will fix the hearing date and write it on the summons, so the defendant is aware of it, and they also notify the claimant.  The defendant has 14 days in which to reply to the court, but he is not penalised if he fails to do so.  However, when the claimant is relying on a discretionary ground for possession, the defendant is foolish if he fails to provide the court with any information as to his circumstances, and reasons why he opposes the application for possession.  Unlike the APP, there is no need for the claimant to request possession, as the hearing date has been fixed in advance.

The hearing
This takes place in open court before either a district judge or a circuit judge.  The rights of audience rules apply, so the judge may refuse to hear an agent.  The hearing should not take long, and, if it appears that the claim is disputed and is likely to involve complicated legal issues or it requires the attendance of several witnesses, the court will adjourn the hearing to another fixed date, giving such directions for further steps to be taken in the case as it thinks appropriate.

The court has a discretion to adjourn proceedings by virtue of section 9(1) Housing Act 1988, unless it is satisfied that the claimant has proved either a mandatory ground for possession, or an assured shorthold tenancy.  In those cases, the court must order possession.
In many instances the defendant has not filed his reply with the court and fails to attend court.  In such a case, the claimant simply needs to prove the following:

  • the tenancy agreement;
  • a copy of the section 8 notice
  • the ground relied on in the section 8 notice (e.g. any breach of the tenancy alleged, if relying upon ground 12); and
  • in the case of a discretionary ground, why it is reasonable for the court to make an order for possession.

These are the possible outcomes:

  • the claimant cannot prove service of a section 8 notice: he should ask the court to find that it is just and equitable to dispense with such a notice.  It is at the court's discretion whether to accede to this request;
  • the claimant cannot prove either the tenancy agreement or a ground for possession: the action will fail, and the claimant will be ordered to pay the defendant's costs;
  • the claimant relies on and proves either an assured shorthold tenancy or a mandatory ground for possession and the assured tenancy: the court must order possession;
  • the claimant relies on and proves a discretionary ground and the assured tenancy: the judge will consider what order to make.

If the claim is successful, the court should grant a possession order, ordering possession within 14 days (or may be deferred for up to 6 weeks, but only in terms of exceptional hardship). 
The possession order should also include an award for the rent arrears outstanding and the claimant's costs (if included in the claim).

More information

Please note: This article was originally published in the Letting Update Journal in October 2003. All information was correct at time of publishing.