Understanding the different types of possession proceedings

Possession proceedings are necessary when a tenant doesn’t leave the property on their own. Landlords need to follow a legal process to evict them. In this guide, consultant solicitor Gary Roy will explain the important steps and information you need to know to do it right. By understanding these key stages, you can handle possession proceedings smoothly and avoid legal issues.

If you’re interested in one particular section, use the links below to navigate straight to it:

• What are possession proceedings?
• The purpose of residential possession proceedings
• The different types of possession proceedings
• Summary of the possession proceedings process
• Protection from eviction in the UK
• The evolution of possession proceedings
• How we can help

Want to discuss how our solicitors can assist with your possession proceedings? Contact our team today. 

What are possession proceedings?

Possession proceedings refer to the legal processes landlords must follow to legally regain possession of their property from tenants. These proceedings are essential mechanisms outlined in housing legislation to ensure that both landlords’ rights to manage their properties and tenants’ rights to secure and stable accommodation are respected and protected under the law.

The purpose of residential possession proceedings

The primary purpose of possession proceedings is to provide a structured and fair resolution to disputes over occupancy rights. 

In the UK, possession proceedings are governed by statutes such as the Housing Act 1988 and the Housing Act 2004. These laws outline the rights and responsibilities of both landlords and tenants, setting out the conditions under which possession may be sought and granted.

The different types of possession proceedings

In landlord-tenant relationships, navigating possession proceedings requires a clear understanding of the legal avenues available. Here, we explore the distinct approaches landlords can take to regain possession of their property in compliance with UK housing laws.

No-fault possession proceedings

To guarantee possession of a property a valid S21 Notice giving two month’s notice must be served on a tenant to end the tenancy. Several potential pitfalls may invalidate a Section 21 Notice, which would usually be for a failure to provide the tenants with any one of the below:

• A valid Energy Performance Certificate
• Gas Safety Certificates
• The Government “How to Rent” Checklist

Mishandling of any Deposit by:

• Failing to register it with an authorised scheme
• Failing to provide the tenant with prescribed information about the deposit and the scheme it is held with.

The service of a S21 Notice may be deemed to be a retaliatory eviction if the tenant has complained about disrepair at the property and in response the Landlord serves notice rather than remedy any defect.

An invalid Notice will make any Court claim defective and it may be struck out possibly with costs against the landlord. It is therefore important that any notice that has been served is valid at an early stage in s21 possession proceedings.

Accelerated possession procedure

If a tenant has not left the property after the expiry of a Section 21 Notice, the next step to lawfully evict the tenant is to issue a possession claim.

If there is a written tenancy agreement and there is no claim for rent arrears, the landlord may wish to issue Accelerated Possession Proceedings. The key difference between the Accelerated Possession Procedure and the Standard Possession Procedure is that there is often no need to attend a Court hearing using the Accelerated Possession Procedure, whereas the Standard Possession Procedure will almost certainly require at least one Court hearing.

Once the possession claim is received by the Court, the Court should then send the claim to the tenants. The tenants will usually have 14 days to respond to the claim.

As long as the Section 21 Notice is valid, there is generally no defence to the claim. Nevertheless, the Defendant may try to defend the claim by saying the notice is invalid for some reason.

If the Judge grants a possession order, the normal order is for the tenant to give back possession within 14 days. However, the tenant may seek to argue that they will suffer exceptional hardship by being ordered to leave the property within that time frame. If the tenant is successful, the Court has the discretion to extend the timeframe to vacate the property to up to 6 weeks. 

S8 notice

It is very common for a landlord’s reason for seeking possession of a property to be due to the fact the tenant has fallen into rent arrears. In such cases the appropriate first step is to serve a rent statement attached to, or included with a notice under Section 8 of the Housing Act 1988.

If there are more than two months’ arrears, the landlord will usually prepare the notices based on the following grounds as these are mandatory grounds for possession if still valid at the time of a possession hearing:

• Ground 8 – where there are at least two months’ arrears at the date of the Section 8 Notice and the date of the first hearing
• Ground 10 – there are some arrears at the date of the notice and the first hearing
• Ground 11 – the tenant has been persistently late in paying rent 

These grounds are critical in section 8 possession proceedings, ensuring the landlord has a solid basis for reclaiming the property.

Standard possession proceedings

If the tenant does not leave upon the expiry of a Section 8 Notice, the next step in obtaining possession of the property would be to issue a possession claim in Court.

Once the Court has received the possession claim, it will set a date for a possession hearing to decide whether to make a possession order. The Court will then send the claim documents to the Defendant and the Claimant with a notice of hearing.

If the defendant does not oppose the claim, then the landlord is likely to be awarded a possession order at that first hearing. However, if the Defendant puts in a Defence, the Judge may use that hearing to make further directions for the management of the case towards a final trial, although the Judge may decide at the first hearing depending on the complexity of the issues raised in the defence.

Once a Possession Order is obtained the Court will send out a sealed copy. If the tenant has not complied with the Order and vacated the property it will be necessary to instruct the County Court Bailiffs or High Court Sheriffs to apply for the warrant for possession and then execute it.

Summary of the possession proceedings process

1. Serve Relevant Notice(s) and Await Expiry

Serve the relevant notice(s) and await the expiry of the prescribed notice period. The usual form of notices will be served under either:

• Section 21 of the Housing Act 1988, which can be used to seek possession at the end of a fixed-term tenancy; or
• Section 8 of the Housing Act 1988 if there are rent arrears.

2. Issue a Possession Claim

Issue a possession claim if the tenant has not complied with the above Notice(s). A landlord has two potential routes to obtain a possession order:

• The Accelerated Possession procedure – which can only be used where the landlord has served an S21 Notice.
• The Standard Possession procedure – usually used in rent arrears cases. 

3. Obtain a Possession Order

If the claim is unopposed then this is usually quite straightforward, but the tenant will be given an opportunity to defend the claim.

4. Apply for the Warrant for Possession (‘notice of eviction’)

Executed by the Court bailiffs if the tenant does not comply with the Possession Order.

Protection from eviction in the UK

It’s also important to note that the UK has robust legal protections in place to prevent unlawful evictions. The Protection from Eviction Act 1977 is an act of Parliament of the United Kingdom protecting people renting accommodation from losing their homes without the involvement of a court. The act outlines the procedures landlords must follow to evict a tenant, including giving the appropriate notice and obtaining a court order. 

If a landlord excludes an occupier from a property without following the correct procedures, that landlord could be deemed to have unlawfully evicted the occupier and may face a claim by the tenant for an injunction to be allowed back into the property, plus damages and legal costs; and potentially criminal prosecution. It is therefore vital for landlords to get the process right and seek expert advice from landlord & tenant dispute solicitors.

The evolution of possession proceedings

The landscape of possession proceedings has evolved significantly over the years, shaped by legislative changes, economic factors, and social issues. Initially, possession proceedings were straightforward, favouring landlords. However, over time, the introduction of various housing acts and tenant protections has made the process more balanced and complex.

Section 21 of the Housing Act 1988

Section 21 of the Housing Act 1988 is a controversial law that allows private landlords to evict tenants on an assured tenancy agreement or rolling contract, without having to provide a reason or establish that the tenant is at fault. Hence, it is sometimes referred to as the ‘no-fault’ ground for eviction. 

It can be used at any time, as the landlord doesn’t have to give any reason for the notice, however, the validity of a Section 21 Notice depends on strict compliance with legal requirements, including providing tenants with necessary documents like the Energy Performance Certificate, Gas Safety Certificate, and the Government’s “How to Rent” guide.

There has been prolonged debate within the government for years regarding the abolition of Section 21. As of 2024, landlords can still issue a Section 21 notice to their tenants. However, the anticipated Renters Reform Bill, which aimed to enact this change, has since been scrapped before coming into force.

Procession proceedings in the post-pandemic era

In 2020, during the height of the pandemic, possession proceedings were halted, and no new proceedings could commence. In the post-pandemic era, the government has continued to review and adjust housing policies to address challenges and ensure that the process remains fair and balanced.

Notable examples include the Housing Loss Prevention Advice Service (HLPAS), offering free legal advice and court representation to those facing potential homelessness, regardless of financial circumstances. Additionally, the Debt Respite Scheme (Breathing Space), implemented in 2023, provides tenants in significant debt with a protected 60-day period, shielding them from creditor actions.

These measures highlight the ongoing commitment to ensuring a more balanced and fair process, focusing on safeguarding tenants’ rights and providing essential support during challenging times.

How we can help

At Richard Nelson Solicitors LLP, we specialise in guiding landlords through possession proceedings. 

Whether you need help with serving notices, preparing for court hearings, or obtaining a possession order, our experts are ready to assist you.  We offer comprehensive legal support to protect your rights as a landlord while ensuring compliance with the law.

Contact us today for a free consultation and advice on the best course of action.