Unpaid rent
It is every landlord’s worst nightmare to discover that the rent has not been paid. The law at present often appears to protect only tenants and allows them to stay ‘rent-free’ in a landlord’s property for months at a time whilst the landlord follows a maze of rules and regulations to get possession lawfully.
For commercial landlords this is expensive and time-consuming. However, for the increasing number of private landlords, who may only own one property which they rent out to just cover the mortgage and other outgoings on the property, it can be disastrous.
We at Sykes Anderson believe we have found the easiest way to guide landlords through the quickest route to possession. We have already shared our expertise with the Small Landlord’s Association, who, from the flood of enquiries we have had, appear to have found our information very useful. Please see our brief Guide to Obtaining Possession
We offer a variety of ways in which to deal with the costs of gaining possession. If you would like us simply to deal with the whole matter from the beginning to end, with the minimal input from yourself, we are happy to provide our full, private service at our published hourly rates, although we are always happy to give an estimate of the likely overall cost.
Alternatively, if you feel confident you can do most of the legwork yourself, but would like to be reassured that at crucial times you are doing the right thing, or want assistance in, for example, drafting the court proceedings, our Pay As You Sue service will suit you. At all times you will appear to be acting in person. However, we can be called upon at any stage to help out and will agree a fixed fee with you beforehand. Here are a few examples of the fixed fees we can offer:
Single Consultation to Advise - £75
Drafting & Service of Notice Seeking Possession - £150
(includes providing an affidavit of service)
Drafting Possession Proceedings - £150
All prices exclude VAT at the prevailing rate.
If you would like any more information about this area of law, please contact David Newton on 0207 702 1914.
All prospective instructions are subject to acceptance by us and to our standard terms and conditions.
A guide to gaining possession of residential tenancies
Below are the basic steps required to obtain possession. These will allow you to see how much assistance you are likely to need, and will ensure that you do not fall foul of the very strict rules and regulations that can often simply send you right back to the start of your proceedings just when you think you have almost won.
STEP1
Decide what type of tenancy your tenants have. Most residential tenancies entered into after 28th February 1997 will be Assured Shorthold Tenancies. If you are unsure, you will need to take legal advice.
Warning: Just because an agreement calls itself a particular type of tenancy, it does not always mean that it definitely is that type of tenancy in practice!
STEP 2
Draft the correct Notice seeking possession to serve on the tenants. There are two main types of notice – s.21 and s.8 – both named after the appropriate sections of the Housing Act 1988 which describe how and when they can be used.
Briefly, s.21 notice is for assured shorthold tenancies, whose minimum term has expired, and which you now wish to end – even if there are no rent arrears or problems with the tenants. The minimum notice period is two months under this notice.
S.8 notices are used for Assured Tenancies (which are not shorthold), and if there are rent arrears or other problems with the tenants. The minimum notice is two weeks under this notice, but certain factors must be met to be able to use such a short period. Otherwise, it is two months. This notice needs to include verbatim, the relevant statutory grounds it relies upon for possession.
Both notices must be completed correctly, giving the date they are served and the date by which the tenant must vacate the premises, or court proceedings will be started.
Warning: In some circumstances, you will need to calculate your notice period to end on the last day of a rental period – read the notes on the notice carefully!
STEP 3
Serve your notice on all tenants. This technically can be sent by first class post to the tenants, but if they claim they did not receive it, you will not be able to prove service. Therefore always serve the document personally on the tenants by handing it to them, or by putting it through the letterbox of the property they are renting. You can do this yourself, but again, if the tenants maintain you did not do this, it will be your word against theirs. Therefore, either use a professional Process Server, or a third party. They will then need to provide you with an affidavit of service. This is a sworn document explaining when and how service of the notice was effected and annexing a copy of the document that was served.
STEP 4
Once the notice period under the Notice has expired, you will need to check whether the tenants have vacated voluntarily. Some may simply disappear with the premises being left empty, and others will remain living there. If the tenants are still in the property, there is nothing you can do, except start court action.
Even if the tenants themselves are not at the property, if their belongings are still there you will need to act cautiously. This may mean they have simply gone away for a few days and will be returning. In such circumstances, you cannot take possession of the property at this stage – it will still be considered an unlawful eviction. If in any doubt, leave matters for a few days and make a return visit, or ask the neighbours.
Warning: Be careful not to appear to be harassing the tenants. Take a third party along as a witness, and always telephone the property before you visit.
STEP 5
If you need to start court proceedings, you will need to decide which route you wish to take.
Accelerated Possession Proceedings allow you to obtain a possession order without a court hearing, providing that the tenants do not defend the action, and that you have provided all the relevant information and documentation with your sworn affidavit which starts the action. In theory, if all goes according to plan this route should give you a possession order within two months of the proceedings being issued, but courts vary in their turn around time.
Warning: You cannot claim an order for rent arrears through this route. However, if the tenants are likely to disappear once they are forced to leave, or do not work, such an order would be worthless in any event. The alternative is to commence a separate debt action against the tenants once they have vacated the property, but you will need an address to serve such proceedings on them.
The normal Possession Proceedings route involves providing Particulars of Claim to start the action, but these do not need to be sworn and no documents need to be provided at the outset. There will be a hearing listed to deal with the matter. However, if the tenants do not defend the action, a possession order can still be made fairly quickly. Again, timing varies a lot between courts.
You have no choice on the court you wish to use. Only one County Court will have jurisdiction for your property. This will be the court for the district in which the property is located. If in doubt, call the nearest court and check with them.
STEP 6
Once you have obtained your court order, the tenants should leave on the date given in that order. However, many do not. You will then need to take enforcement action.
Please refer to STEP 4 as to how to ensure the tenants have actually vacated. If you are in any doubt, it is best to take enforcement action.
You will need to apply to the same court that made the possession order for a Warrant of Possession.