The following section gives general advice relating to Assured Shorthold Tenancies only, if you require advice about a different type of tenancy, you should seek the advice of a Solicitor or contact a national landlords association. Further detailed information about this type of tenancy can be found in the leaflet “Assured and Assured Shorthold Tenancies – a guide for landlords” produced by the Department for Communities and Local Government.
Can I get my property back at the end of the fixed term of a shorthold tenancy?
Yes, you have the right to regain possession without giving any grounds for possession at any time after the fixed term of the tenancy has ended, or at any time, if the tenancy is a statutory periodic tenancy, provided it is at least 6 months since the start of the original tenancy.
You must give the tenant at least 2 months' notice in writing that you require possession, the notice has to be in writing stating that you require possession under Section 21 of the Housing Act 1988 but you do not have to use a specific form to do this. If you give notice at any time during the fixed term, but the date you state you require possession cannot be before the end of the fixed term. If the tenancy is on a contractual or statutory periodic basis, the date on which the notice expires must be the last day of a tenancy period, i.e. if a tenancy runs from month to month, the last day of the tenancy period will be the last day of the month. Please note that as from 6th April 2007, unless you have registered your tenant's deposit with a Tenancy Deposit Scheme, you will not be able to regain possession of your property under Section 21. Please see the Tenancy Deposit Scheme page for more information.
Can I get my property back during the fixed term of a shorthold tenancy?
You can only seek possession during the fixed term of the tenancy if there are certain reasons or ‘grounds’ for example if the tenant is in arrears with the rent, is persistently late paying the rent, if the tenancy was granted after a false statement was made by the tenant or if the tenant has broken other conditions of the tenancy agreement, there are 17 grounds in all. Some of the grounds are mandatory which means that of you can prove that the ground applies, the court must grant you a possession order. The others are discretionary which means the court will only grant you a possession order if it thinks it is reasonable to do so, based on all the facts in the case.
The ‘grounds’ for possession can be found in Appendix C of the leaflet “Assured and assured shorthold tenancies – a guide for landlords” which is available as a PDF.
I have ‘grounds’ for possession, what do I do now?
You must give the tenant written notice that you intend to go to court to seek possession. You must use a special form called “Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy” which is available from most law stationers. The amount of notice you need to give varied from none to 2 months depending on which ground you use. The form asks you to state which of the ‘grounds’ for possession you are using, and you should write each as it appears in the legislation.
You can apply to the court to start court proceedings as soon as the notice expires.
How do I get a possession order from the Court?
You must apply to your local County Court for a possession hearing. If you have given your tenant 2 months' notice under section 21 or you have given notice under one of the “mandatory grounds” the court will issue an absolute possession order and the tenant must leave by the date specified in the order. If the court orders possession on one of the discretionary grounds, it can either grant an absolute possession order or it may allow the tenant to stay on in the property provided certain conditions are adhered to – for example, paying back an amount of rent arrears each week. This is called a suspended possession order and the tenant cannot be evicted provided the conditions are adhered to. If the tenant does not abide by the conditions of the suspended possession order, the landlord may apply to the court for an absolute possession order or the next stage which is a warrant for possession, depending on the terms of the suspended possession order.
What is the accelerated possession procedure?
This a straightforward and inexpensive procedure for getting possession of your property without a court hearing. The court will make its decision on the documentation that you and the tenant provide, unless it believes that a court hearing is necessary. You can only use this accelerated procedure if you have a written tenancy agreement (or if the tenancy has lapsed into a periodic tenancy, that there was a written agreement for the original tenancy) and you have given the tenant the required notice in writing that you require possession. Under accelerated possession proceedings the Court will only award a possession order, it cannot award the rent to be repaid to you in the event of rent arrears, as such this procedure is not suitable if the tenant is in arrears and you require rent to be awarded to you.
You should apply to the County Court for accelerated possession proceedings, further information can be found at the Courts Service website.
Can I evict the tenant myself as soon as I have a possession order?
No. The tenant should leave the property on the date specified in the court order. However, if the tenant still refuses to leave, you cannot evict him or her yourself. You must apply for a warrant for eviction from the court. The court will arrange for the bailiffs to evict the tenant.
Can the court order the tenant to pay back all the rent owed to me?
If a possession order is granted on the grounds of rent arrears, and you request it, the court will usually order the tenant to pay back the rent owed at a rate appropriate to his or her circumstances. If asked to consider it, the court may also award a sum to cover interest on the outstanding rent.
What is illegal eviction?
The Protection from Eviction Act 1977 makes it a criminal offence for any person to unlawfully deprive a ‘Residential Occupier’ of his or her occupation of the premises.
The term ‘Residential Occupier’ is defined in the Act. It covers virtually everyone living in residential accommodation and will certainly cover all tenants who rent from private landlords. To regain possession of the property a Landlord must obtain a Court Order for possession which is then enforced Court Bailiffs.
The only exception to this is when someone shares living accommodation with their landlord, for example a bathroom, living room or kitchen. In this instance the landlord only needs to give the person ‘reasonable notice’ to leave. Once the notice has expired the person can be excluded from the accommodation without a court order.
Examples of unlawful eviction include denying access to the property, changing the locks, removing tenants' possessions, physically throwing the tenant out, moving someone else into the property, deprivation of part of the accommodation, e.g. bathroom/kitchen.
The only defence a landlord has to a charge of unlawful eviction is if they can show that they had reasonable cause to believe that the tenant had left, and they can satisfy the Court that this is the case.
Illegal eviction is a criminal offence which carries a maximum penalty of a £5000 fine or 6 months' imprisonment in the Magistrates Court or an unlimited fine and a custodial sentence of up to 2 years in the Crown court. Tenants can also claim civil damages against landlords who illegally evict them which can be substantial, as the amount is based on the difference in the market value of the property as tenanted as compared with vacant possession.
What is harassment?
It is also a criminal offence under the Protection from Eviction Act 1977 for any person to harass a Residential Occupier in such a way that as a result they could be expected to give up their accommodation. This includes acts likely to interfere with the peace and comfort of the Residential Occupier or the persistent withdrawal of essential services with the intention of causing the Residential Occupier to leave.
Common acts of harassment can include threats of violence or illegal eviction, disconnecting gas, electricity or water, deliberately disruptive repair works, frequent visits at unreasonable hours, entering the property without the tenant’s permission.
The penalties for harassment are the same as for illegal eviction. Tenants can claim special and general damages through the Civil Courts against landlords who harass them which can be substantial and costly.
