It is often the case that tenants refuse to vacate a property despite having been served with either a section 21 or section 8 notice. This is often due to a shortfall of housing and local authority usually advising tenants to remain at the property until a warrant of possession has been obtained before rehousing them. When a tenant refuses to leave you will usually have to commence court proceedings. There are two ways of evicting a tenant – the Accelerated Procedure and the Standard Procedure.

When doing so and even at the time of issuing either a section 21 or 8 notice it is important that the correct procedure and forms have been used to avoid any kind of delay or in the worse case scenario having to restart the proceedings and serving a fresh notice.

The Accelerated Procedure

In order to commence proceedings a Landlord must first serve Notice under either section 21(1)(b) or Section 21(4)(a) of the Housing Act 1998. Which section is relied on depends on whether the term of the tenancy has come to an end or not.

Only once the notice has expired can a Landlord issue proceedings. To do so you will be required to complete the required forms with evidence of the AST, and if applicable, the Deposit having been paid into one of the approved tenancy deposit schemes

Once proceedings have commenced the court will issue the claim form and will serve the tenant who will then have 14 days in which to respond. After 14 days have passed the Court will then consider the papers and the defence (if applicable). If there are no grounds for a defence or if a defence has not been filed then the court will order the tenant to give possession of the property within 14 days.

Provided that everything is in order there is unlikely to be any reason for the court to not grant possession. However where possession proceedings are likely to put the tenant under hardship the court may consider allowing extra time of up to 6 weeks for the tenant to vacate when making an order.

The Standard Procedure

Again prior to bringing proceedings a landlord will be required to serve notice under section 8 of the Housing Act. The notice period will ultimately depend on which ground the landlord is relying on.

Once the claim has been filed then the court will set a date for a hearing where the landlord will be required to establish the ground(s) in which they rely on. Under the act there are 17 different grounds, which can be relied upon. Of the 17 grounds eight of them are ‘mandatory’ meaning if either of the eight are established then the court then the court must grant possession. The other nine grounds are ‘discretionary’ meaning a landlord must persuade the court that possession should be granted once one of the grounds have been established.

Deposits

Since 6 April 2007, under sections 212 – 215 of the Housing Act 2004 have been required to place any deposits taken into an approved tenancy deposit protection scheme. Failing to do so will mean landlords cannot serve a section 21 Notice as per section 215(1) of the Housing Act 2004.

In addition a landlord can face a claim for three times the deposit amount under section 214 of the Housing Act 2004. If you have not paid a tenants deposit into a scheme it is imperative that you do so immediately. By paying it into a scheme before any action is taken or a hearing has been set then you can avoid paying up to three times the amount of the deposit. There will however still be some cost consequences as was the case in the recent rulings of Draycott v Hannells Letting Ltd [2010] 3 All E.R. 411 and Tiensia v Vision Enterpirses Ltd [2011] All E.R. 1059. This is due to the fact that once that deposit has been paid into the scheme the tenant cannot claim that he/she has suffered a loss.

Enforcement

When considering any kind of recovery action for rent arrears in relation to an AST it is important to assess whether it is worth pursuing the action. It is one thing obtaining a judgment it is another trying to enforce it.

It is often the case that if a tenant had money they would have been paying their rent in the first place rather than risk having a CCJ against them, as such caution should be taken when seeking to spend a substantial amount of money on recovery with no hope of a return.

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