Most landlords seeking to recover possession of their property at the end of a tenancy want to do so as quickly as possible. The idea of an accelerated procedure, where a landlord can obtain a possession order without a court hearing, undoubtedly has its attractions. However, the accelerated possession procedure is not always a surefire route to obtaining possession quickly. As the legal obligations placed on landlords increase and the law governing possession becomes more complex, the accelerated possession procedure may not be the most appropriate or expeditious procedure to follow.
Landlords wishing to use the accelerated procedure must ensure, before starting the claim, that they are entitled to use the procedure, that they have complied with all their legal obligations in relation to the tenancy, and that they have the necessary paperwork ready to evidence compliance.
The accelerated possession procedure is available to landlords if:
- The tenancy is an assured shorthold tenancy entered into on or after 15 January 1989;
- The tenancy is subject to a written agreement or follows on from a fixed term that was set out in a written agreement;
- Any fixed term has come to an end;
- A valid section 21 notice has been served on the tenant and the date in the notice has passed. A section 21 notice requires the landlord to give the tenant at least two months’ notice;
- The landlord only seeks possession of the property and not any other remedy such as a money judgment for rent arrears.
Most problems that arise in accelerated possession claims concern the validity of the section 21 notice. A section 21 notice may be invalid if:
- It fails to comply with the correct legal formalities, for example, it stipulates a shorter period of notice than is legally required.
- The landlord has taken a deposit in connection with the tenancy and has not complied with the rules relating to protecting the deposit in an authorised scheme and serving the tenant with the necessary prescribed deposit information.
- The landlord is required to obtain a property licence but has not done so.
The rules relating to section 21 notices, tenancy deposit protection and property licensing are complex. Often landlords do not discover until after issuing possession proceedings that they have not satisfied all their legal obligations, their 21 notice is invalid as a result, and their possession claim will fail.
If a judge is not satisfied that a valid section 21 notice has been served then he or she will either list the case for a hearing, in which case the advantage gained from opting for the quicker, accelerated route will be lost, or the judge will dismiss the claim. The landlord may find that he or she has to start from scratch, re-issue the section 21 notice and wait another two months before court proceedings can be re-started.
Further changes to section 21 notices passed earlier this year and due to come into effect in October create additional obstacles for landlords seeking to use the accelerated possession procedure. A section 21 notice will not be validly served if prior to the service of the notice the tenant has made a written complaint to the landlord regarding the condition of the property, the landlord has not provided an adequate response within 14 days and the tenant has then complained to a local authority who have served an improvement notice or carried out emergency remedial action. Landlords will also be prohibited from using a section 21 notice within 6 months of the service of a local authority’s improvement notice or emergency remedial notice (notices issued by Councils to deal with poor housing conditions). Further information on the recent changes to section 21 notices can be accessed here.
The effect of the above is that the accelerated possession procedure is often not the fast-track route to possession that some landlords expect it to be. In many instances it is unlikely to be any more accelerated than the standard court procedure. It may be the case that the accelerated procedure as a whole becomes unworkable as judges find themselves unable to decide all the relevant issues without a hearing.
Landlords are recommended to seek expert legal advice before commencing possession proceedings if they have any doubt as to the validity of their section 21 notices and their legal obligations. Getting the process right the first time, even if it involves re-issuing a notice and following the standard possession procedure, undoubtedly saves costs and, in the long run, it may even be the more ‘accelerated’ path to possession.