Possession Order Application (accelerated possession)
Once a s21 notice has been given, but the tenant refuses to leave, then the next step is for the landlord go to court to ask for a possession order. Possession proceedings must be commenced (where appropriate) within 6 months of the notice having been served because apparently 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!
The Possession Order will be applied for through the County Courts by the landlord carrying out the following:
- Competing Form N5B (claim form for possession of property- accelerated procedure);
- 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 actually 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.
MAKING AN ORDER
The judge will have wide ranging powers when it comes to making an order and will direct in one of two ways:
1: Whether the order is to be made absolutely where a period of time is specified which is usually after around 14 days in order to give the tenant time to find alternative accommodation. If the tenant is claiming exceptional hardship, the order can be extended for a up to a maximum of 42 days (6 weeks)
2: A postponed/suspended order can be made if the tenant agrees to comply with certain conditions contained within the order such as paying the rent arrears by specified amounts over certain periods of time in addition to paying the rent when it becomes due. As long as such conditions are met, the landlord cannot make an application for the possession date to be fixed, and the tenant can remain in the property. If conditions are not met then the landlord can apply for a possession warrant, without the need to return to court and there will be no advance warning sent to the tenant.
The court will also decide if the landlord is entitled to his costs for taking court action.
The case may even be adjourned as a decision cannot be reached at the time. This could be in situations where:
- The tenant disputes the type of tenancy they have;
- More time is given to sort out a Housing Benefit Claim;
- There is no history of rent arrears and and the amount in question is small
- More evidence is required by the judge.
With an adjournment the tenant may receive a new date for another court hearing or the landlord may be told to reapply to the court after a fixed period of time or if there are any change in circumstances of the case.
During this time the tenant has the right to stay put.
A form N26 will be used by the court to notify the parties of the judgement. If the tenant is in rent arrears then they will need to complete and return the form N11R which asks for their income and expenditure. This will allow the court to assess a suitable repayment plan.