s21 Possession Order Application
It is important that landlords realise that serving a s21 eviction notice does not actually end the tenancy. Even if the tenant stays beyond the end of the tenancy date he/she does not become a squatter and is therefore not committing a criminal offence.
In fact local councils will always advise tenants who have been served a s21 notice to stay put. This is because a) councils must be satisfied the landlord is determined to follow the eviction through as per their own Homeless Guide or b) the landlord at least gets an order for possession that gives the tenant a few more days to vacate the property. The harsher reality is that they are even more likely to do nothing until the bailiffs arrive and the tenant(s) end up on their council doorsteps with their possessions and children in tow. What this also means is that within the definition of Part VII of the Housing Act 1996 (homelessness and threatened homelessness) if they move out before the bailiffs arrive, unless they have somewhere to go, they are deemed to be ‘voluntarily homeless’ and will lose their right to be re-housed.
STARTING POSSESSION PROCEEDINGS
Nevertheless, once a s21 notice has been given, possession proceedings must be commenced (where appropriate) within 6 months of it having been served. Before this, the longest time between issuing the notice and starting possession proceedings was 8 years! So once issued, landlords must be prepared to act on it otherwise they will not be able to!
So, when evicting the the tenant under s21, the landlord must apply for a Possession Order through the County Courts by carrying out the following:
- Form N5B (claim form for possession of property- accelerated procedure)
- The tenancy agreement. If there has been more than one tenancy agreement with the same tenants at the same property then copies of the first tenancy agreement, as well as the latest tenancy agreement should be sent. The tenancy agreement may need stamp duty to be paid on it before being sent to the court.
- A copy of the s21 notice and evidence of its service upon the tenants (such as a recorded delivery slip). If there is no documentary evidence of service, a certificate of service via a Form N215 may require completing or a witness statement providing evidence of how the section 21 notice was served.
- If the property is a House in Multiple Occupation (HMOs) or is located in an area designated for licensing by the local authority, a copy of the licence or, if this has not yet obtained, evidence that one has been applied for.
- If a deposit was received after 6 April 2007 evidence that it has been placed into a Government-approved Tenancy deposits scheme.
- A cheque for the court fee, details of which can be obtained via leaflet EX50 and the subsequent cheque made payable to ‘HMCTS’.
The court will then do the following:
- Issue the claim;
- Give it a claim number (the court’s reference number);
- Send a copy of the claim to the tenant;
- Write to the landlord confirming that this has been done and informing the date of service on the tenants.
CHALLENGING THE EVICTION
Tenants have the opportunity to challenge the s21 eviction process as the papers sent by the court include a defense form but this has to be entered within two weeks of the tenant receiving the papers. After the court receives the defence papers it arranges a closed court hearing before a judge where the tenant has the opportunity to put forward their case, stating why they believe the eviction to be invalid. The landlord must either attend the hearing or appoint an agent to attend on their behalf. A witness statement may be accepted by the Court if the landlord or agent are unable to attend the hearing .The judge will listen and refer to the relevant law.
On the other hand, if no defense papers are submitted then the court can use the accelerated possession procedure to make a decision without a hearing. If the paperwork submitted by the landlord is correct, then the possession order will be issued and a date set for the tenant to leave.
Note: This process can’t however be used if the tenant is in breach of the tenancy agreement. Instead the landlord will look to serve notice under grounds for eviction.