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I want to recover possession of property that I rent to tenants: what do I need to do? How is the process affected by the COVID-19 pandemic?

View profile for Laura  Anderson
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A landlord that lets residential property under an Assured Shorthold Tenancy (AST) needs to give their tenant notice if they want them to leave. If the tenant doesn’t move out, the landlord needs to apply for a Possession Order, that will specify a date by which the tenant needs to leave. Bailiffs can be appointed to evict a tenant that fails to comply with a Possession Order.

The Coronavirus Act 2020 made changes to the timetable for this process.

What type of notice?

This depends whether the tenant is in breach of the AST. If the landlord alleges a breach, they will need to serve a ‘Section 8’ Notice. A common breach is non-payment of rent, but there are others. A landlord that wants to recover possession where the tenant is not in breach, should serve a ‘Section 21’ Notice. Whichever form of Notice is appropriate, the relevant prescribed form must be used.

How much notice?

Pre-Coronavirus, a Section 8 Notice needed to give a tenant 2 weeks’ to 2 months’ notice, depending on the breach; a Section 21 Notice needed to give at least 2 months’ notice.

The Coronavirus Act extended these notice periods. If notice was served between 26 March and 28 August 2020, a landlord needed to give 3 months’ notice. However, notice served between 29 August 2020 and 31 May 2021 in most cases needs to give 6 months, including for Section 21 Notices.

What happens if the notice has expired but the tenants are still in the property?

If a tenant has not moved out by the date that the notice expires, a landlord will need to apply for a Possession Order (ie commence possession proceedings).

The amount of time that a landlord has to start possession proceedings has been extended by the Coronavirus Act, and is now 10 months from the expiry of the notice.

Possession proceedings were stayed from 27 March to 20 September 2020. This has created a backlog of cases that the courts are now working through, with the result that claims issued on or after 3 August 2020 (so-called ‘new claims’) will take longer to be decided. Judges will take into account the impact of the pandemic (on landlords and tenants) when deciding whether to grant a Possession Order (in cases where they have a discretion), and when it will take effect (ie by when the tenant has to move out).

The date for possession has passed but the tenant has not moved out; what happens next?

If a tenant does not move out by the date specified in a Possession Order, the landlord will need to apply for a warrant of possession. Tenants will be given a notice of eviction that will give them at least 14 days’ notice; if they have not moved out by the date specified, bailiffs can attend to evict them.

There is a stay on evictions until 31 May 2021, with only a few exceptions. Once the stay has lifted, the courts and bailiffs will work through the backlog, with certain categories of case being given priority.

All this means that recovering possession of residential property will take much longer than it would in pre-pandemic times, and this effect will be felt for quite some time yet.

If you are a Landlord wanting to recover possession of property let under an AST, the Dispute Resolution team at Johnson Astills can advise on your options and prepare notices and claims.

Contact us today to arrange a Fixed Fee Initial Consultation with Laura Anderson, to receive pragmatic, expert advice.