Recovery of Possession from Residential Tenants

As the law stands the majority of short term residential tenancies granted to individuals are an assured shorthold.

This form of tenancy was introduced by the Housing Act 1988 so as to afford greater flexibility in the residential lettings market.  A landlord can grant a term of at least six months in the reasonable expectation of recovering possession once the term has ended, although the actual eviction process may take a few months if a tenant chooses to be difficult.  Recent steps to combat the pandemic have an impact on the ability to recover possession.

Notice without reason – section 21
Provided the relevant procedural requirements have been met, a Section 21 Notice can be served without reason giving the tenant two months to leave, at the earliest on the term date, or face accelerated possession proceedings.  The accelerated procedure in the vast majority of cases can be dealt with by the Court on paper.  With effect from 29 August 2020 the Government, as part of the pandemic measures, has increased the notice requirement to a minimum of six months and the notice is valid for 10 months.

Default – section 8 procedure
If the tenant has defaulted on the terms of the tenancy, then the Section 8 procedure is available for the purposes of seeking possession.  Most commonly this arises from the tenant failing to pay rent.  Provided the rent, if payable monthly, is two months in arrears at the date of the Section 8 Notice and at the date of the hearing, then the Court will make a Possession Order giving the tenant up to six weeks to leave.  If the rent arrears fall beneath two months before the hearing, then a Possession Order is discretionary and often will not be granted outright.  Recent measures introduced to combat the pandemic now require there be six months of arrears.

Flexibility eroded
In recent years the flexibility of the assured shorthold tenancy has been steadily eroded.

In order to counteract unscrupulous landlords keeping tenants’ deposits, the placing of such deposits in Deposit Protection Schemes became compulsory and failure to do so within a prescribed period prevents service of a Section 21 Notice unless the deposit is returned.  Failure to provide the tenant with the prescribed information about the deposit also prevents service of a Section 21 Notice.

Deregulation Act 2015
Following the Deregulation Act of 2015 which now applies to all assured shorthold tenancies regardless of when those were granted, it is necessary to have provided the tenant with an Energy Performance Certificate, the booklet How to Rent: The Checklist for Renting in England and a Gas Safety Certificate (if there are gas appliances) before a Section 21 Notice can be served.

Of all these requirements that which causes the most difficulty is the provision of the Gas Safety Certificate.  That arose from the decision in Caridon v Shooltz (2018) to the effect that if the tenant had not been provided with the Gas Safety Certificate ‘before that tenant occupies the premises’ in accordance with the Gas Safety (Installation and Use) Regulations 1998, a valid Section 21 Notice could not be served.  This certificate cannot be given to the tenant after the event.  Many landlords were caught out by this.  The June 2020 Court of Appeal decision in Trecarrell House Ltd v Rouncefield has clarified the position somewhat insofar as, provided the tenant has the gas safety certificates before the section 21 notice is served, that will suffice.

Other section 21 hurdles
In the event the local council has issued Disrepair Notices a Section 21 Notice cannot be served whilst those are pending as this is deemed retaliatory eviction.

In the case of a house in multiple occupation requiring a Licence, no Section 21 Notice can be served until this Licence has been obtained.

None of these hurdles affect the ability to serve notice on tenant default (Section 8).

Government keen to give residential tenants greater security
The government is keen to afford residential tenants greater security and the increasing obstacles to service of a Section 21 Notice appear directed at this.  There is now a consultation upon removing the blanket no fault evictions permitted by Section 21 so that a landlord can only evict on tenant default, sale or for own occupation.

Ultimately landlords will need to have either a really good tenant or a very bad one.

By Sarah Payne, Litigation Solicitor at Cambridge solicitors Barr Ellison. Contact Sarah on 01223 417200.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.