Please note: We have taken the following excerpts from the gov.uk website and it is credited to: Department for Levelling Up, Housing & Communities Ministry of Housing, Communities & Local Government

 

Who is this guide for?

This guide is for people who are letting a house, flat or any part thereof in England and Wales to tenants in the private rented sector while living in another property. This guide is focused on landlords letting to tenants on an Assured Shorthold Tenancy or an Assured Tenancy.

This guide will help you to understand what rights and responsibilities you have as a landlord when you need to use the courts to take possession of your property. This includes the new arrangements which will be introduced in association with the lifting of the suspension of possession cases in the county court on 21 September 2020.

This guide does not cover leasehold, holiday lets or ‘resident landlords’ who let to lodgers.

Separate guidance is available for social landlords who need to use the courts to take possession of their property.

An overview of the possession action process

If you have made a claim for possession which is already in the court system, see Part 1.

Before taking steps to recover possession of your property, you should consider discussing any underlying problems with your tenant, either directly or through a mediation service, and try to resolve these without recourse to court action. This could save you time and money. See Part 2 for more information and advice on how to resolve problems with your tenant without needing to go to court.

Stage 1: Serve a notice of seeking or requiring possession

Give your tenant a Section 8 or Section 21 Housing Act 1988 notice, specifying the date by which you would like your tenant to leave your property.

Stage 2: Make a possession claim

If your tenant does not leave by the date specified in the notice, you can apply to the court for a possession order. You must attach evidence explaining how the coronavirus pandemic has affected you and/or your tenant and/or their dependants.

The tenant can submit a defence to the court. In the defence, the tenant may put forward legal reasons why a possession order should not be made, the tenant may put forward a counterclaim, or the tenant may ask for extra time to vacate due to extreme hardship. If a defence is received, the court will send you a copy.

If your claim is based on a section 21 notice and you have used the court’s ‘accelerated procedure’, the judge can consider the claim documents, and any defence received, and make a possession order without a hearing taking place.

Stage 3: Before the hearing

The court will give you a date for the hearing and provide you with any further directions as necessary. You will need to send the court an electronic copy of all of the case documents and confirm that you have also provided these to your tenant, including the notice setting out the effect of the coronavirus pandemic on your tenant and/or their dependants.

Stage 4: Attend the possession hearing

There will be a possession hearing at which a judge will decide whether to make a possession order or give other case management directions.

Stage 5: Apply for a Warrant of Possession

If a possession order was granted and your tenant does not leave by the date specified in the order, you can apply to the court for a warrant of possession. The tenant can apply to suspend the Warrant. A county court bailiff will enforce the warrant and carry out the eviction.

1. Claims already in the court system

In England and in Wales, legislation which restricted bailiff enforcement of evictions, has now been lifted. This was in place in England from 17 November 2020 until 31 May 2021 and in Wales from 11 December 2020 until 30 June 2021. Therefore, all orders can now be enforced where the landlord has a valid warrant of possession.

However, bailiffs must provide 14 days’ notice of an eviction. People who test positive for COVID-19 are now being advised to stay at home and avoid contact with other people. Tenants are advised to make bailiffs aware if anyone living in the property has tested positive and/or display any of the main symptoms of COVID-19. Guidance to bailiffs on carrying out an eviction in these circumstances is being reviewed.

Bailiffs are working through outstanding warrants in date order of when the warrant of possession was issued, to ensure older warrants are actioned first. The only exception to this will be cases issued under anti-social behaviour grounds or for cases involving squatting, or where there are operational reasons to action a newer warrant first.

If you have an outstanding warrant of possession which has expired, or is nearing its expiry date

Warrants of possession are valid for 12 months from date of issue. If you have been unable to proceed to enforcement due to restrictions introduced as a result of the coronavirus pandemic and your warrant has subsequently expired or is due to expire and you wish to apply to extend the life of the warrant, then you must complete a N244 (general application form) and send it to the court.

The N244 must ask the court to ‘extend the life of the warrant for a further 12 months as it expired due to COVID-19 / or give your reasons as to why you require the life of the warrant to be extended.’ The application must include any change of circumstances of yourself (the landlord) and details of any communication with or change in circumstances for the tenant. The application will then be considered by a District Judge. You may be required to attend a hearing if the Judge deems it appropriate. Any application to extend the life of a warrant will incur a general application fee of £108 (without notice to the defendant) or £275 (with notice to the defendant). This is applicable in England and Wales.

Bailiffs re-commenced enforcement of valid possession warrants from 1 June 2021. Where practicable, bailiffs will work in date order of when the warrant of possession was issued to ensure older warrants are actioned first. The only exception to this will be cases issued under anti-social behaviour grounds or for cases involving squatting, or where there are operational reasons to action a newer warrant first. In the majority of cases, the bailiff will serve a 14-day notice period on the defendant ahead of any eviction.

If you have a warrant of possession but no longer require an eviction to be carried out – for example, because your tenant has left the property and has cleared their possessions and returned their keys – you should let the court know as soon as possible that you do not want the eviction to go ahead.

The notice of bailiff’s appointment that you received from the court will provide you with contact details, the claim number and the warrant number. You must contact the court, quoting the relevant details, to let the bailiff know that attendance at the property is no longer required.

Where an eviction is to take place, a notice of the eviction appointment will be sent to both landlord and tenant. Appointments will be scheduled with a minimum of 14 days’ notice and the tenant may be able to apply to suspend the eviction. However, bailiffs must provide 14 days’ notice of an eviction. People who test positive for COVID-19 are now being advised to stay at home and avoid contact with other people. Tenants are advised to make bailiffs aware if anyone living in the property has tested positive and/or display any of the main symptoms of COVID-19 (including if they are following the international travel rules and the guidance contained in COVID-19 Response: Living with COVID-19. Guidance to bailiffs on carrying out an eviction in these circumstances is being reviewed.

If you have a possession order and the date on which the tenant was due to give up possession has passed, but you have not yet applied for a Warrant of Possession

In the light of the coronavirus pandemic and the effect that this may have had on your tenants, you should carefully consider whether you wish to proceed with the eviction. You do not need to take any steps if you decide not to seek an eviction at once and you will still be able to rely on the possession order if you decide to take your property back at a later date. You can apply for a warrant of Possession at any time during the period of 6 years after the date a possession order is made.

How long will the court process take?

Due to the COVID-19 pandemic many cases will have built up which the courts need to process, and the courts will not be operating at their full capacity. Therefore, it is very likely to take longer than the usual 8 weeks for your claim to be heard by a judge.

We would encourage you to continue to engage with the tenant to seek resolution of the issue and explore what can be achieved in terms of assisting the tenant to access benefits, or a discretionary housing payment, or agreeing a repayment plan, as appropriate.

2. Do you need to take court action?

The majority of tenants abide by the terms of their tenancy agreement and pay their rent on time. Most tenancies end with the agreement of the landlord and tenant without the need to go to court. If you want your tenant to leave your property because your circumstances have changed or they have broken the terms of the tenancy agreement, you must follow strict procedures. If you do not, you may be guilty of illegally evicting or harassing your tenant.

Seeking possession through the courts should only be used if and when you have tried all other means of resolving your situation. Claiming possession through the court will cost between £400 and £500, not including legal fees, and will take time to resolve.

Wherever possible, you should ensure that you pursue other options to resolve your situation first. This will most likely be quicker and cheaper. You should communicate with your tenant directly to discuss problems such as rent arrears or anti-social behaviour as openly and frankly as possible, and to try to find a solution which works for you both. For more information, see the sections in this guidance on ‘What to do if your tenant is in rent arrears’ and ‘What to do if your tenant is committing anti-social behaviour’. We have also worked with the National Residential Landlords Association to produce a guide for landlords on how to manage arrears and avoid possession claims in the context of the coronavirus pandemic.

Where possible and appropriate, we would encourage landlords to consider alternative dispute resolution such as mediation to reach a mutually acceptable agreement to resolve disputes, without the matter needing to go to court. There are several services available in the market, such as TDS Resolution, PRS Mediation Service and Resolve by Flatfair, which specialise in resolving disputes in the private rented sector which you may wish to consider.

You may be able to access other services which facilitate the resolution of disputes between tenants and landlords. There is no single list of organisations or schemes offering dispute resolution in specific areas, but you can check by:

• asking your local council: some local authorities offer free of charge specialist support for landlords who are considering serving a notice of possession (you can find your local council using this tool
• searching online
• asking a consumer advice service such as Citizens Advice
• consulting a legal professional

You can find more information about what mediation is and how it works at the Civil Mediation Council’s website, and you can also search for a mediator in your area.

You can also access the Housing Ombudsman Service for training on dispute resolution if you are a member.

It is important that you engage with your tenant and try to find out more about their personal circumstances. If you make a claim for possession, the court will ask you for information to determine whether your tenant is vulnerable; for example whether they have been affected by the coronavirus pandemic (including if they were previously classified as clinically extremely vulnerable and/or were shielding) or if they are in receipt of welfare benefits. The court may not be able to progress your case until you provide this information. If your tenant is struggling as a direct result of the COVID-19 pandemic, you should consider if you could delay seeking repossession of your property and find a way to support your tenant until such a time as they might be better able to move to another property.

We recognise that in some cases, making a claim for possession will be unavoidable, for instance if your tenant is building up rent arrears and refusing to communicate with you, or if you wish to move into the property and are unable to reach a voluntary agreement with the tenant to end the tenancy. However, it is important that court time is put to the best possible use. Where possible, you should use the court process only as a last resort.

If you do need to apply to the Court to claim possession of your property we would strongly advise you to seek legal advice before proceeding.

3. What to do if your tenant is in rent arrears

If your tenant has built up rent arrears, you should communicate with them in the first instance to gather more information about their personal circumstances and how they may be able to pay off their arrears.

An early conversation between you and your tenant can help to agree a plan if your tenant is struggling to pay their rent. This can include reaching a temporary agreement not to seek possession action for a period of time and instead accept a lower level of rent or agree a plan to pay off arrears at a later date. It is likely to be cheaper to accept a slightly lower rate of rent, rather than arranging for a new tenant to move in.

You are also encouraged to consider mediation. Mediation allows an independent third-party to assist those involved to reach a mutually acceptable agreement to resolve their dispute, without the matter needing to progress through court. This includes agreeing to a rent repayment plan. Mediation can be quicker and cheaper than court action.

There are several services, as well as individual mediators, available in the market who specialise in resolving disputes in the private rented sector. Examples of mediation services include TDS Resolution, PRS Mediation Service and Resolve by Flatfair.

You may be able to access other services which facilitate the resolution of disputes between tenants and landlords. There is no single list of organisations or schemes offering dispute resolution in specific areas, but you can check by:

• asking your local council: some local authorities offer free of charge specialist support for landlords who are considering serving a notice of possession (you can find your local council using this tool)
• searching online
• asking a consumer advice service such as Citizens Advice
• consulting a legal professional

You can find more information about what mediation is and how it works at the Civil Mediation Council’s website, and you can also search for a mediator in your area.

You can also access the Housing Ombudsman Service for training on dispute resolution if you are a member. If you would like more information on this, please visit this link: https://www.housing-ombudsman.org.uk/.

You should attempt to resolve any issues with rent arrears with your tenant before issuing a notice or claim for possession. You may find it helpful to consult the guide we have produced with the National Residential Landlords Association on how to manage arrears and avoid possession claims in the context of the coronavirus pandemic.

4. What to do if your tenant is engaging in anti-social behaviour

In some circumstances, you may need to act because your tenants are committing anti-social behaviour. This could be more minor disruptive behaviour (for example against housemates or neighbours in a House of Multiple Occupation), or it could be serious and/or criminal. Whilst possession action is one method of resolving such issues, there are alternative courses of action which you may wish to consider prior to, or instead of, serving a notice requiring or seeking possession.

You should always act carefully when negotiating with tenants who are accused of anti-social or disruptive behaviour. Take care not to jeopardise your own or others’ safety and take advice from the appropriate source (for example, a solicitor, your local authority or the police), if you are unsure how to proceed.

Some disruptive behaviours could be resolved through a frank and full discussion by the parties involved. You should talk to or write to your tenant in the first instance, informing them of the complaints which have been made against them and making clear that their behaviour is unacceptable. You should keep a record of the conversation. If this does not work, you must give the tenant a final warning and make a record of this.

Sometimes, a tenant is not the right fit for the property, particularly in a House of Multiple Occupation, for example if they do not get on with their housemates. You may wish to discuss ending the tenancy by mutual consent. However, you must not harass or force the tenant to leave without following the formal possession process.

When responding to severe instances of anti-social behaviour, it may be worth bearing in mind that the police, local authorities and other local agencies have a range of flexible tools and powers that they can use to respond quickly and effectively to anti-social behaviour, as provided by the Anti-Social Behaviour, Crime and Policing Act 2014. These include:

• Civil Injunctions which are available to the police, local council and other local agencies on application to the courts and can impose restrictions or positive requirements on individuals who have engaged or threatened to engage in anti-social behaviour in order to prevent them from engaging in this behaviour;

• Community Protection Notices which can be used by the police or the local authority to deal with ongoing problems or nuisances which are having a persistent or continuing and detrimental effect on the quality of life of those in the locality;

• A Closure Power which the police and local authorities can use to close premises of which use has resulted in, or is likely soon to result in, nuisance and disorder; and

• Criminal Behaviour Orders which can be issued by a court and impose restrictions or positive requirements on an individual convicted of a previous criminal offence, who has engaged in behaviour that has caused, or was likely to cause, harassment, alarm or distress.

You may wish to read the statutory guidance for frontline practitioners on the use of powers to address anti-social behaviour.

You should consider contacting your local authority or the police in the first instance. If a criminal offence, such as criminal damage or assault, has taken place you should contact the police straight away.

If, having tried alternative means of resolving anti-social behaviour being perpetrated by a tenant, you feel that you have no option but to seek possession, there are grounds for you to do so under Section 8 of the Housing Act 1988.

Ground 7A, is for cases where serious anti-social behaviour has already been established in other court proceedings anti-social behaviour has a minimum notice period of 4 weeks (for periodic tenancies) or 1 month (for a fixed term tenancy).

Ground 14 is for nuisance or annoyance, or the illegal or immoral use of the property and proceedings can be commenced immediately after the service of the notice.

Ground 14 is a discretionary ground, which means that you need to bring forward evidence to prove that the anti-social behaviour has taken place and, if the court is satisfied by the evidence, it will take all of the circumstances into account and will decide if it is reasonable to grant possession.

Ground 7A is a mandatory ground, which means that the judge must grant possession if you can prove that the ground has been met. For more information about the notice periods which need to be provided for anti-social behaviour under Section 8 of the Housing Act 1988 please see Annex A (England) or Annex B (Wales)

5. Stages of the possession process

Stage 1: Serving a notice of possession

You can give your tenants a section 8 notice if you have a reason which corresponds with a specific ground; for instance, they have broken the terms of the tenancy. The grounds for possession are set out in Schedule 2 to the Housing Act 1988.

Serving your tenants with a section 8 notice

How to serve a section 8 notice

To give your tenants a Section 8 notice, you must fill in Form 3.

If you are serving a section 8 notice in England, you can find the prescribed form 3 at: ‘Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy’.^{[footnote 1]}

Important – you must complete the form correctly. Use the guidance notes accompanying the form to help you. Form 3 and accompanying notes have been published at our Assured Tenancy Forms webpage.

You can get legal advice on how to fill in Form 3 and how to give it to your tenants. The possession process in Court may be delayed if you do not fill out the form correctly.

You may also choose to seek the advice of a professional association.

You need to specify on the notice the specific grounds you are using to seek possession of your property.

You can use mandatory grounds. These are grounds where the judge must order the tenants to leave your property if you can prove the ground. Examples include the grounds for 8 weeks’ rent arrears and convictions for anti-social behaviour.

You can also use discretionary grounds. These are grounds where the judge can only order the tenants to leave your property if you can prove the facts which correspond with the ground and the judge considers it reasonable to make an order. Examples include grounds for other breaches of the tenancy agreement.

Serving your tenants with a section 21 notice

Section 21 notices in England: notice periods

From 1 October 2021, all notice periods returned to their pre-pandemic lengths. This means that a Section 21 notice must provide at least 2 months’ notice.

However, if a notice was served on a tenant between 26 March 2020 and 30 September 2021, the notice period required was longer due to coronavirus (COVID-19) regulations. The length of notice required was dependant on the date on which the notice was served, as set out below. You can also find more information in our Technical Guidance on eviction notices.

26 March 2020 to 28 August 2020

From 26 March 2020 to 28 August 2020 the minimum section 21 notice period that you could give to your assured shorthold tenants was 3 months.

29 August 2020 to 31 May 2021

From 29 August 2020 until 31 May 2021 the minimum section 21 notice period that you could give to your assured shorthold tenants was 6 months.

1 June 2021 to 30 September 2021

From 1 June 2021 until 30 September 2021, the minimum section 21 notice period that you could give to your assured shorthold tenants was 4 months.

Section 21 notices in Wales: notice periods

From the 26 March to 23 July 2020 the minimum section 21 notice period that you could give to your assured shorthold tenants was 3 months. Notice periods given on or after 24 July 2020 until at least 31 December 2021 must be for at least 6 months.

How to serve a section 21 notice

You can only use a section 21 notice if your tenants have an assured shorthold tenancy. You cannot use it if your tenants have an assured tenancy.

In England, you should use Form 6A to give notice if the tenancy was started or renewed after 30 September 2015. In Wales, you must explain in writing that you are serving an eviction notice under Section 21 of the Housing Act 1988.

Important – you must complete the form correctly. Use the guidance notes which accompany the form to help you. Form 6A and accompanying notes have been published at the Assured tenancy forms webpage. You can get legal advice on how to fill in Form 6A and how to give it to your tenants. The possession process in Court may be delayed if you do not fill out the form correctly.

In England, your section 21 notice will only be valid if you have:

• Given your tenant the right amount of notice on the date that the notice was served- see the ‘Section 21 notices in England: notice period lengths’ section above.

• Allowed at least 4 months to elapse, since the start of the original tenancy, before serving the section 21 notice.

• Protected the tenant’s deposit in a government-approved deposit protection scheme and given the tenant information about how the deposit is held. You must provide the tenant with certain details about the deposit known as ‘prescribed information’. This includes details of the deposit protection scheme, confirmation of the amount held, your contact details and information on how the tenant can get their deposit back when they leave.

• Obtained a licence for the property from the local authority, if the property needed one.

• Started court proceedings in time:

Where a landlord gave a tenant a valid Section 21 notice between 29 August 2020 and 31 May 2021 inclusive, it can be relied upon to commence proceedings for:

• 10 months from the date it is given to the tenant, where Section 21(4D) applies; or
• 4 months from the date specified in the notice as the date after which possession is required, if Section 21(4E) applies.

Where a landlord gave a tenant a valid Section 21 notice between 1 June 2021 and 30 September 2021, it can be relied upon to commence proceedings:

• 8 months from the date it is given to the tenant, where Section 21 (4D) applies; or
• 4 months from the date specified in the notice as the date after which possession is required, if Section 21 (4E) applies.

Where a landlord gives a tenant a valid Section 21 notice on or after 1 October 2021, it can be relied upon to commence proceedings for:

• 6 months from the date it is given to the tenant, where Section (4D) applies or
• 4 months from the date specified in the notice as the date after which possession is required, if Section 21(4E) applies.

Section 21 (4D) applies where the tenancy granted is/was a) a fixed term tenancy or b) a periodic tenancy under the terms of which the tenant is entitled to no more than 2 months’ notice. Section 21 (4E) applies where the tenancy granted is a periodic tenancy under the terms of which the tenant is entitled to more than 2 months’ notice.

• Provided the tenant with the right documents giving information about the property and their rights and responsibilities as a renter. This includes a valid gas safety certificate if there is a gas installation in the property, an energy performance certificate, and the version of the ‘How to Rent’ guide which was most up to date when your contract started or was renewed.

• Completed the required repairs and allowed at least 6 months to elapse, if you received an improvement notice or notice of emergency remedial action from the local authority following a complaint made by the tenant.

• Repaid to the tenant (or otherwise properly accounted for) any prohibited payments that you may have charged them. The law says that you are only allowed to take certain permitted payments. These are set out in the Tenant Fees Act 2019 guidance for landlords.

In Wales, your Section 21 notice will only be valid if you have:

• Given the tenant at least 3 months’ notice to leave, if you gave notice from the 26 March to 23 July 2020. If you served notice on or after 24 July 2020 until at least 24 March 2022, you must have given your tenant at least 6 months’ notice months’ notice to leave. The notice must be given in writing.

If you served your notice before 26 March 2020, you must have provided your tenant with a minimum of 2 months’ notice.

In a fixed term tenancy, you can serve a section 21 notice at any time, but it cannot end until the end of the fixed term. In a periodic tenancy notice can be given at any time, but the appropriate notice period must be given and the date specified in the notice as the date after which the tenant must leave the property, must be the last day of a period of the tenancy.

• Protected the tenant’s deposit in a government-approved deposit protection scheme and given the tenant information about how the deposit is held. You must provide the tenant with certain details about the deposit known as ‘prescribed information’. This includes details of the deposit protection scheme, confirmation of the amount held, your contact details and information on how the tenant can get their deposit back when they leave.

• Registered or obtained a license under the Rent Smart Wales scheme, where the section 21 notice is given after 23 November 2016.

• Obtained other licences from the local authority, if the property needed one, such as in HMO accommodation.

• Repaid to the tenant (or otherwise properly accounted for) any prohibited payments that you may have charged them. The law says that you are only allowed to take certain permitted payments. The list of prohibited or allowable payments is set out in the Renting Homes (Fees Etc.) (Wales) Act 2019 guidance for landlords and agents.

Providing Proof of Service

You will need to be able to be able to show the court that you have served notice correctly and given the right amount of notice. This will assist the judge when making a decision on whether to grant a possession order. You should always check the tenancy agreement to see what methods of service it allows you to use – the methods mentioned below are the most common.

Keep a copy for yourself

You will need to provide a copy of the notice to the court as part of your application for possession. It is essential you retain a copy of the document for yourself. Take the copy once you have completed, signed and dated the notice.

Personal service on the tenant

If you are serving the notice on the tenants personally for example handing it to them, then the best way to prove the tenants have been served with the notice is to have the tenants sign and date all copies of the notice (including your own). Alternatively, if they refuse to sign the notice but do accept the document, then you can fill out a certificate of service (N215) form and include that in any paperwork you send to the court.

Posting to the tenant

You can usually serve the notice by first class post or by another next day delivery service. Consider taking dated and timed photographs as evidence of posting. If you decide to use a tracked service, one that does not require a signature is best and you should retain the receipt. You can fill out a certificate of service (N215) form and include that in any paperwork you send to the court.

Leaving the notice at the property

It is always best to see whether the tenant is at home before putting the notice through the letterbox. If the tenant is present, you can serve the notice personally. If you are serving by posting through the letterbox, consider taking photographs or taking a witness with you. You can fill out a certificate of service (N215) form and include that in any paperwork you send to the court.

If you deliver the notice by hand, consider attaching a handwritten note or writing on the envelope, explaining, for example, what the notice means, why you have served it and, where appropriate, whether you are willing to come to an agreement with your tenant in preference to commencing court proceedings. This may encourage the tenant to answer and respond.

You may also wish to consider informing your tenants about our companion guide, Understanding the possession action process: A guide for private residential tenants in England and Wales, which contains more information about the steps which a tenant should take when served with a notice seeking or requiring possession.

Stage 2: Making a claim for possession

If your tenant does not leave by the date specified in the notice, you can apply to the court for a possession order. For all claims, you must also provide a statement setting out what knowledge you have about the effect of the coronavirus pandemic on the tenant and their dependants. This includes accelerated possession claims.

Standard possession claims

When using the online service

You can use the possession claim online service if you are claiming possession on the grounds of rent arrears for example where you have used a section 8 notice and have specified one or more of the rent arrears grounds.

The service lets you fill in court forms online and see how the claim is progressing. You will need to provide a rent statement covering the preceding 2 years, showing what payments were due and received to demonstrate how the arrears claimed have accrued. You will also need to provide a notice setting out what you know of how your tenant has been affected by the coronavirus pandemic.

It costs £355 to issue the claim.

Contact the Possession Claim Online help desk if you need help or advice.

Telephone: 0300 123 1057 Monday to Friday, 8:30am to 5pm [email protected]

When using the paper-based application process

Fill in the paper standard possession claim form (N5) and the Particulars of Claim (Form N119) and post or deliver it to the county court that deals with housing cases for the area in which your tenant’s property is located. You can find the details online on the Courts and tribunal website.

You can use this method if:

• you have served a section 8 notice on grounds other than rent arrears, for example anti-social behaviour or other breach of tenancy, or
• you have served a section 8 notice on rent arrears grounds but do not have access to or do not wish to use on-line facilities, or
• you have served a section 21 notice but the tenant owes you rent and you want the court to order possession and make a money order at the same time

You must also attach a notice to the claim setting out what you know of how your tenant has been affected by the coronavirus pandemic. The court may not be able to progress your case until you provide this information. See below, ‘Information you must provide to the court on how your tenant has been affected by COVID-19 (The Covid Notice)‘.

It costs £355 to apply. Send a cheque made payable to ‘HM Courts and Tribunals Service’ to the court with your completed paperwork. You must provide the court with an additional copy of each of the documents you are submitting, for the court to serve upon your tenant, and you should keep a copy for yourself. If the tenancy is in joint names, you will need to send an additional copy for each person.

Important – you must complete the forms accurately and include the correct evidence to support your claim. If you do not, you may have to start the process again.

What happens next

The court will send you notice that the claim has been issued, and it will serve the claim upon your tenant, giving your tenant an opportunity to respond to the claim by submitting a ‘defence’. You should keep the notice of issue safe as it shows the claim number which the court has assigned to your case (which you will need to quote in all future communications/documents) and gives you information about the next steps.

If your tenant submits a defence to the court, the court will serve you with a copy. The court will inform you of the date and time of the possession hearing.

Accelerated possession claims

You can apply for an accelerated possession order if your tenants have not left by the date specified in your Section 21 notice and you’re not claiming rent arrears. It costs £355. If you want to claim rent arrears you can use either the:

• standard possession procedure, or
• accelerated procedure to get your property back, then make a separate court claim for the rent arrears

How to apply

Download and fill in the form for properties in England or the form for properties in Wales (N5B) and send the completed form to the county court that deals with housing cases for the area in which your tenant’s property is located.

You must also attach a notice to the claim setting out what you know of how your tenant has been affected by the coronavirus pandemic. The court may not be able to progress your case until you provide this information. See below ‘Information you must provide to the court on how your tenant has been affected by COVID-19 (The Covid Notice)’.

Include a copy of the completed form and of any documents you have attached to it, for the court to serve upon your tenant (if it is a joint tenancy, send a copy for each person). Keep a copy of everything for yourself.

Important – you must complete the form and notice accurately and include the correct evidence to support your claim. If you do not, you may have to start the process again.

What happens next

The court will send your tenant a copy of your application and will give your tenant an opportunity to respond to the claim within a stated time (14 days). At the same time, the court will send you notice of issue of the claim. The notice of issue will give you the claim number which has been assigned to your case (which you will need to quote in future correspondence and documents) and it will inform you of the deadline given to your tenant for responding to the claim. At the bottom of the notice of issue is a ‘written request for a possession order’ form which you will need to complete and return to the court at a later date.

Your tenant may submit a defence to the court putting forward reasons why, in the tenant’s view, you may not be entitled to possession. In that case:

• the court will send you a copy of the defence
• the court is likely to fix a date and time for a hearing
• you may wish to seek legal advice

Your tenant may also submit a response to the court accepting that you are entitled to possession but asking for more time due to extreme hardship. In that case:

• the court will send you a copy of the response *the judge may be able to make a decision on how much additional time the tenant can stay in the property, up to a maximum of 6 weeks or may decide to list the case for a hearing

If your tenant does not respond to the court within the time allowed: * you should complete the ‘written request for a possession order’ form (the bottom half of the notice of issue) and submit it to the court; after that * a judge will consider your claim and, if satisfied, will make an order for possession

Information you must provide to the court on how your tenant has been affected by COVID-19 (The Covid Notice)

When making a claim for possession, you must provide a Covid Notice setting out how, to your knowledge, the defendant (your tenant) and any dependants, such as children, that form part of the tenant’s household, have been affected by the coronavirus pandemic. This could include information about your tenant’s vulnerability, disability and welfare benefit position, with specific reference to those who may have been required to shield.

If you have no knowledge of your tenants’ circumstances you should make this clear, including information about any attempts made to discuss matters with them.

You should send the Covid Notice detailing this information to the court with your claim for possession. This information should be clearly provided in Section 7 of the Particulars of Claim and further information can be provided on a written note attached to the form if needed. This applies to both standard and accelerated possession claims. The court may not progress your case until you provide the required Covid Notice.

Stage 3: What you need to do before the hearing

For Section 8 cases and Section 21 cases where the landlord has used the standard possession procedure, you will receive the date of the possession hearing, and any further directions as necessary.

At least 14 days prior to the hearing, you should email the the court at the address provided with the following information:

An electronic copy of all case documents to the court, including the claim form and particulars of claim, information about how your tenant has been affected by coronavirus and the tenant’s defence, including whether they have marked the case as being affected by COVID-19. You must confirm that you have provided a Covid Notice about your tenant’s circumstances to the court. This should include information about the effect of the pandemic on your tenant and his or her dependants, and about their vulnerability, disability and welfare benefit position, with specific reference to those who may have been shielding.

Confirmation that you have provided a copy of all of the information about the case, including the Covid Notice, to the tenant, in hard copy and electronically if they have provided their email address.

Stage 4: Possession hearings and orders

The Possession hearing

Court hearings for possessions are usually held in the county court that covers the area where the property is located. You should let the court know as soon as possible if you have any special requirements, for example if you need extra assistance to access the building.

You should bring copies of all the paperwork relevant to your claim to the possession hearing. This includes 2 copies of the notice which you provided with your claim setting out the impact of the coronavirus pandemic on your defendant (the Covid Notice).

At the court hearing the judge might:

• adjourn the hearing – it will be moved to a later date
• dismiss your claim – your claim will have been unsuccessful for reasons which the judge must make clear
• make a possession order – which may either be ‘outright’ or ‘suspended’ depending on the grounds on which the order is made and the circumstances of the case as assessed by the judge.

The judge may adjourn the case if:

• the judge decides that there is insufficient time to hear the case on the day
• the judge decides that more information is needed
• the tenant is unable to attend court for valid reasons, for example a hospital admission

The judge may dismiss the case if:

• you have not followed the correct procedure
• you or your representative do not attend the hearing
• the judge does not believe that the conditions of the ground have been proved
• your tenants have paid any rent that was owed

If the judge dismisses the case, you will not be able to apply for enforcement. If the tenant has incurred legal costs in defending the claim, the judge may order you to pay those costs. Depending on the reason for dismissal, you may be able to continue to seek possession, but you would have to start the court process again, and you may need to serve a new notice before doing so. It may be in your interests to seek legal advice before taking any further steps.

Possession orders

The judge can make different kinds of possession order.

Note: In England and in Wales, legislation which restricted bailiff enforcement of evictions, has now been lifted. This was in place in England from 17 November 2020 until 31 May 2021 and in Wales from 11 December 2020 until 30 June 2021. Therefore, orders can now be enforced where the landlord has a valid warrant of possession.

However, bailiffs must provide 14 days’ notice of an eviction. People who test positive for COVID-19 are now being advised to stay at home and avoid contact with other people. Tenants are advised to make bailiffs aware if anyone living in the property has tested positive and/or display any of the main symptoms of COVID-19. Guidance to bailiffs on carrying out an eviction in these circumstances is being reviewed.

Outright possession order

This form of order requires your tenant to leave your property by a date specified in the order – the deadline for leaving is midnight on the specified date.

The date will usually be 14 to 28 days after the court hearing, although it could be shorter or longer. Where the order is made on a mandatory ground or under section 21, and if it is a case where the tenant would suffer extreme hardship, the judge can allow the tenant up to a maximum of 6 weeks.

Suspended and postponed orders for possession

A suspended order specifies a date for possession, but it also sets out conditions which your tenant is required to abide by. For example, a condition might be that your tenant pay the rent plus a stated amount towards the arrears each month. So long as your tenant keeps to the conditions, you will not be able to enforce the possession order. If your tenant breaches the conditions, you can request the court to issue a ‘warrant for possession’ and the court bailiff will then arrange to carry out an eviction.

Postponed possession orders also permit a tenant to stay in the property so long as they abide by certain conditions; however, they do not include a specific date for when the tenant must leave the property. However, if your tenant breaches the terms of a postponed possession order, you can make an application to the court to get a fixed eviction date. The court decides whether there will be another hearing.

Possession orders with a money judgment

A judge can add a money judgment to any of the possession orders. This means your tenant owes a specific amount of money, usually made up of:

• the rent arrears
• court fees
• your legal costs.

Appealing against the decision

You may be able to appeal to a higher court if you have proper legal grounds – for example, if you can show that the decision was wrong because of a serious mistake or because the procedure was not followed properly. If you think this is the case at the end of the hearing, you should ask the judge for the reasons for the decision made and for permission to appeal. If the judge gives you permission, or if you continue to be concerned, you should seek legal advice urgently, as there is generally only a 21 day window for bringing an appeal. A solicitor who specialises in housing should be able to advise you whether you have grounds for an appeal and whether it is worth pursuing.

Stage 5: Warrants and bailiffs

You can ask the court for a ‘warrant for possession’ if your tenants do not leave your property by the date given in an order for possession, or do not abide by the conditions set out in a suspended order of possession. It costs £130.

If you originally issued your possession claim using the possession claim online service you can request the warrant directly through that service. Otherwise you must send the request and the fee to the court where the hearing was held.

Enforcement

A notice of the eviction appointment will be sent to both the landlord and tenant. Appointments will be scheduled with a minimum of 14 days’ notice and the tenant may be able to apply to suspend the eviction. People who test positive for COVID-19 are now being advised to stay at home and avoid contact with other people. Therefore, tenants are advised to make bailiffs aware if anyone living in the property has tested positive and/or display any of the main symptoms of COVID-19 (including if they are following the international travel rules and the guidance contained in COVID-19 Response: Living with COVID-19. Guidance to bailiffs on carrying out an eviction in these circumstances is being reviewed.

The bailiff will follow the latest government guidance. They will conduct the eviction wearing Personal Protective Equipment (PPE) and maintain social distancing.

Your responsibilities after a warrant has been issued 

After the court issues a warrant for possession your tenant will be sent an eviction notice stating a date and time at which the county court bailiff will attend to repossess the property.  If the tenant does not leave before the appointment, the bailiff will carry out an eviction.  

The court will send you confirmation that a warrant has been issued and, once these have been allocated, it will send you notice of the date and time of the bailiff’s appointment to repossess the property on Form EX96.   

You need to let the bailiff know about any risks they may encounter when carrying out the eviction. The eviction will be delayed if you do not complete a risk assessment accurately and return it to the court before the bailiff appointment date. 

You should confirm the appointment and provide a risk assessment by completing and returning the tear off slip on the EX96 form, to arrive at the court at least 3 working days before the appointment date, otherwise the appointment may be cancelled.    You should attend the bailiff’s appointment, particularly as the bailiff may need instructions from you if the tenant does not cooperate.  Wait for the bailiff outside the property and take a spare set of keys with you, if you have them.  You should not enter the property until the bailiff has indicated you may do so. You may want to arrange for a locksmith to attend as well – to help the bailiff gain entry, if necessary, and to change the locks after the eviction. 

Transferring the warrant to the High Court 

You may wish to consider applying for a High Court enforcement officer to evict your tenant. This will cost more, but you may get an eviction date sooner. 

You can get a ‘writ of possession’ if you transfer the warrant from the county court to the High Court.  

Before you transfer, you’ll need to apply for permission from the county court if you do not already have it. It costs £71 plus a further £71 to seal a writ of possession as well as High Court enforcement officer’s fees.  

Legislation which restricted bailiff and High Court Enforcement Officers enforcement of evictions has now been lifted in England and Wales. From 1 June in England and 1 July in Wales, High Court Enforcement Officers are able to send out notices of evictions and enforce evictions.

Delaying eviction 

In both the county court and the High Court, a notice of eviction will be sent to your tenant at least 14 days before the eviction is due to take place. 

Your tenant may be able to apply to the court for a ‘suspension’ of the warrant.  The application will be listed for a hearing where a judge will decide whether it is lawful and reasonable to grant a suspension.  The court will give you notice of this hearing and you should attend to protect your interests.  

6. Further advice and information

National representative bodies

• National Residential Landlords Association
• Guild of Residential Landlords

 

Please note this guide has been taken directly from gov.uk. with credit to Department for Levelling Up, Housing & Communities Ministry of Housing, Communities & Local Government