Sometimes landlords need to regain possession of their properties – even if they have the perfect tenants. This month, Stephanie Robinson takes two very different situations and explains how important it is to follow the rules when you want your property back...
I let a property on an assured shorthold tenancy but the occupants have not paid any rent for ten weeks. How can I regain possession?
The court is unable to make an order for possession of a property let on an assured shorthold tenancy, unless it falls under the grounds outlined in the Housing Act 1988. These grounds can be mandatory or discretionary.
If the ground is mandatory and assuming it is proven, the court will grant possession. If it is discretionary, even if it is proven, the court does not have to find in favour of the landlord.
The first step is to serve a Notice Seeking Possession (NSP) setting out one or a number of grounds. The date that court proceedings can commence depends upon the grounds on which you are relying.
If the rent is payable weekly or fortnightly and is more than eight weeks overdue, you can serve a NSP. If rent is paid monthly, then the tenant must be at least two months in arrears before you serve the notice. If proceedings are necessary, the court will be obliged to grant you possession of the property, as these are mandatory grounds, so long as there are still sufficient rent arrears at the date of the hearing.
Should the tenant take steps to reduce the arrears, then a NSP can be served on one of two discretionary grounds – that rent is still outstanding or that the tenant is persistently late in paying. If a NSP has been served on one of these grounds, then the court will look at all the circumstances, but still has the power to refuse the order.
Unfortunately, courts tend to be unwilling to grant orders for possession on discretionary grounds unless it can be proved that the tenant has been consistently late in paying rent for a prolonged period.
I have just purchased an investment property with sitting tenants who have lived there for many years. Can I ask them to leave?
Firstly, you need to ascertain when the tenants moved into the property and what type of agreement they have. These two factors will determine your ability to obtain vacant possession.
If the tenants moved into the property after January 15, 1989, there is a strong possibility that they are either assured periodic or assured shorthold periodic tenants.
In previous articles, I have explained that these types of tenancy cannot be brought to an end purely by serving a notice to quit. Only the occupier can terminate them, by surrendering the lease or serving a notice to quit. The landlord must, therefore, obtain a court order for possession, which involves following a strict set of rules.
If the tenants originally had an assured shorthold tenancy, they will now be assured shorthold periodic tenants. To terminate this agreement, you must issue the appropriate notice seeking possession, giving at least two months warning and ending on the anniversary of the tenancy. A court order is then required, but if this notice is served correctly, the landlord should be granted possession.
If they don’t have a shorthold tenancy, they will probably be assured periodic tenants. This presents the landlord with greater problems, as to gain possession you must not only serve the correct notice, but also establish that one of the pre-determined statutory grounds for possession is applicable.
There are 17 grounds on which you can claim a right to possession. Some of these are mandatory and some are at the discretion of the court. The main problem when purchasing a property with sitting tenants is that the only grounds open to you are those based on fault of the tenant, such as arrears or breach of contract. If you have model tenants, you have no entitlement to possession.
This is a complex area of the law and I strongly suggest you seek expert advice before making any attempt to obtain possession at the time of purchase.
Stephanie Robinson is a solicitor specialising in property and commercial litigation at Sheffield’s Taylor&Emmet LLP. Telephone 0114 218 4000 or visit www.tayloremmet.co.uk and www.landlorddisputes.co.uk.