A Brief Guide to Regaining Possession of your Property

Providing  the agreement is not for a fixed  term of more than 3 years, a Tenancy Agreement does not need to be in writing. The terms can be agreed between the parties orally with certain terms implied into the agreement, for example the Landlord’s obligation to repair the property. Subject to some exceptions and criteria being met it is likely the agreement will be regarded as an Assured Shorthold Tenancy.

If you wish to take back possession of the property you must give written notice under Section 8 of the Housing Act 1988 setting out the grounds for possession before you can start legal proceedings.  These can be mandatory grounds for example, the Tenant is more than 2 months in arrears with rent or discretionary grounds, for example consistent late payment of rent.

On expiry of the Section 8 notice, anywhere between 2 weeks to 2 months, you will be entitled to start legal proceedings for possession under the standard procedure. If you are applying on a mandatory ground it is likely the Court will grant you a possession order at the hearing.  However, if the Tenant suddenly makes a payment which brings the total rent arrears to less than 2 months then the mandatory ground will fall away. This means you will be left with only a discretionary ground for possession and whether or not a possession order is granted is entirely at the Court’s discretion.

Some Landlords don’t realise that a Section 21 notice can also be served giving the Tenant 2 months to vacate the property, providing you have served on the Tenant all the required documentation (for example, EPC Certificate, Gas Safety Certificate and the Government’s ‘how to rent’ Guide) which ensures that the notice is valid.  If there is no written Tenancy Agreement you cannot apply to the Court using this Section alone but you can use this Section as an alternative if the Court decides not to grant you possession based on a discretionary ground.

Amber Rothwell, a Trainee Solicitor with Pictons currently training in our Civil and Commercial Dispute Resolution Team says “It is not always necessary to have a written agreement in place and not having one does not mean you are prevented from regaining possession of your property.  It is important to  ensure you have complied with any applicable conditions and  ensure the restrictions do not apply to you prior to serving the notice.  An invalid notice can delay the process which means waiting for the notice to expire before starting the process again.  I recommend Landlords take legal advice at the start of the process to ensure possession is regained at the earliest opportunity ina t cost effective way”.

If you are considering regaining possession of a property, with or without a written Tenancy Agreement in place contact Amber Rothwell on 01908 355701 or Julian Ireland on 01582 878453.

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