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Recovering possession of residential property

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The law relating to Landlords and Tenants is complex, and a landlord will need to demonstrate compliance if they want to recover possession of a property that they let out under an Assured Shorthold Tenancy (AST).

Documentation/information

Some of the obligations imposed on a landlord relate to the giving of information, and a tenant must be supplied with the following:

  1. A valid Gas Safety Certificate
  2. A copy of the government’s ‘How to Rent Guide’
  3. A copy of a valid Energy Performance Certificate

Not giving these documents to a tenant can affect the validity of a Section 21 notice.

If a tenant pays a deposit, it must be protected by a government-approved scheme. If a deposit has been paid but not protected, the landlord will need to return it before a Section 21 Notice can be served. If prescribed fees have been paid, they will also need to be returned to the tenant.

What type of notice? How much notice?

Certain breaches of the terms of a tenancy agreement (eg non-payment of rent) will allow a landlord to serve a ‘Section 8’ notice. If a landlord wants a tenant who is not in breach of their tenancy agreement to leave, they will need to serve a ‘Section 21’ notice. Depending when the AST began, a landlord may need to use a prescribed form of Section 21 notice.

Usually, a landlord wanting to recover possession of property needs to give their tenant at least 2 months’ notice. In response to Covid-19, a landlord cannot require their tenant to leave until the period of 3 months (at least) has expired since the notice was served (where service is in the period 27 March to 30 September 2020). This applies to both Section 8 and Section 21 notices.

What happens once the notice has expired

Even assuming a landlord has validly served a section 8 or 21 notice, they are not automatically entitled to possession of the property when the specified period has expired. Instead, they must apply for a possession order (PO). If granted, the PO will specify the date by which the tenant should vacate. If the tenant still remains in possession, the landlord can apply for a Warrant of Possession, enforced by court-appointed bailiffs.

Deploying self-help (eg changing the locks) at any point leaves a landlord at risk of a complaint of unlawful eviction.

If you are a landlord or tenant wanting advice on recovering possession of residential property, call our Dispute Resolution Department for guidance.