Accelerated Possession Procedure
Property has long been a source of income for landlords and over the past decade or so, much use has been made of the buy-to-let market which has encouraged landlords to rent out premises. Of course, the main advantages to landlords is twofold: the tenant contributes towards the landlord’s mortgage, whereas the landlord takes the benefit of any increase in value in the underlying interest in the premises and the landlord also takes the rental income stream from the tenant. This is all great in theory, but what happens when things go wrong? How can the landlord get rid of a tenant in a costly and quick manner at the end of the lease?
It is important to remember that landlords are not free to evict tenants from premises unless they have followed the correct legal procedures. Legislation has been introduced over time to prevent unscrupulous landlords from using unscrupulous methods to manipulate their tenants. Landlords can be guilty of a criminal offence if they fail to evict tenants without a court order and it can be costly and expensive to go through a court hearing. The accelerated possession procedure is a method of helping landlords to recover their premises from a tenant without the need for a court hearing. Accelerated possession claims are much quicker and more cost-effective than other methods, although the landlord can only recover the premises and his application costs in this way. Sums such as rent arrears are dealt with separately.
The key to using this accelerated possession procedure successfully, however, is to ensure that the correct legal process is followed.
How does the procedure work? In a nutshell, the landlord must serve a notice (called a section 21 notice) on the tenant, giving at least 2 months’ notice and then an application can be made to the court. If the relevant details of the procedure are complied with, a landlord can bypass the need for a full hearing and the court can issue an Accelerated Possession Order to require the tenant to vacate the premises. The court usually gives the tenant 14 days to move out. If a tenant fails to comply with this Order, the landlord has remedies available to him such as instructing bailiffs. Of course, the forms and paperwork that needs to be completed are technical documents and a lawyer should be instructed to advise and help landlords to navigate the legal requirements appropriately.
It should be noted that not all cases are eligible for the accelerated possession procedure. It is important to check that a landlord and tenant qualify. Local authorities or housing association landlords do not qualify, nor tenants who comply with the ‘agricultural worker condition’.
The terms of the agreement must also be appropriate to qualify for the accelerated possession claims. For example, tenants must occupy the premises under a written agreement documenting an assured shorthold tenancy (which started after 15 January 1989). If the tenancy agreement was made or renewed after 6 April 2007, rent deposits must have been treated in a certain manner, for example using a government-approved scheme. The tenant must also have occupied the premises for at least 6 months. The fixed term of the tenancy must have come to an end (or be subject to an appropriate break clause), although it is important that a lawyer reviews the form of agreement to check the details. Confusingly, sometimes the law deems that a tenancy can continue on terms known as a ’statutory periodic tenancy’ and this affects when the accelerated claim procedure is started.
One area of law that is fraught with legal battles is the issue of serving notices. There are many technicalities to comply with, failing which the whole accelerated claims process can be jeopardised. There are many cases of problems with notices and the Chairman of the London Association of District Judges has been quoted as commenting that around 70% of Section 21 notices are incorrect and invalid. For example, it is important that the Section 21 notice is served at the right time (and this depends on the terms of the tenancy agreement), on the right tenant, containing the right information and the notice must be delivered in the correct manner. For this reason, a landlord would be well-advised to consult a lawyer.
Once the notice has been correctly served on the tenant, the landlord can file an application with the court. If the tenant disputes the accelerated possession claim at all, they have 14 days to file a defence from the date they are served with the Court application. If the landlord has taken care with the paperwork, the tenant’s ability to stop the Court Order will be significantly reduced. The judge will make his decision without a hearing and, hopefully, issue the Accelerated Possession Order so that the landlord can take steps to recover the premises back from the tenant.