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Initial steps to take

Initial steps to take

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Initial steps in the accelerated procedure

If you are a landlord who has granted an assured shorthold tenancy, you may be entitled to regain possession of your property under section 21 of the Housing Act 1988 (the accelerated procedure). A court will not make an order for possession within 6 months of the tenant first going into possession of the property. If the property is in England and the tenancy started on or after 1 October 2015, the tenant must have been in possession of the property for at least 4 months before you can serve a section 21 notice to start the accelerated procedure. If the current tenancy is a statutory periodic tenancy, this 4-month requirement doesn't apply. However it is likely that if the tenancy has rolled over into a statutory periodic tenancy, the tenant would already have been in possession for at least 4 months.

There is a prescribed form for section 21 notices for properties in England where the tenancy started on or after 1 October 2015. The prescribed form does not apply to statutory periodic tenancies starting after this date if the fixed-term which they follow on from started before this date. There is no prescribed form for tenancies in England starting before this date, or for tenancies in Wales.

If the tenancy is for a fixed term it can only be ended before the end of the term if there is a break clause.

You do not have to provide any other grounds for possession using this procedure.

What is the difference between fixed term and periodic?

a) A fixed-term tenancy

A fixed-term tenancy will be created for a specified length of time, for example, 12 months. However, if the tenants remain in the property after the fixed term has ended, and do not enter into a new fixed-term agreement with you, the tenancy will automatically become periodic (see below).

b) A periodic tenancy

A periodic tenancy rolls on a specific period such as month to month or quarter to quarter. This arrangement may have been specified at the start of the tenancy or may have naturally arisen by the expiry of a fixed-term tenancy.

First steps

The first step in the accelerated possession procedure is to correctly serve a section 21 notice (Serving notice). However, there are certain criteria which must be fulfilled that you should be aware of before you begin this procedure. These are described below.

Criteria that must be fulfilled

Before you can begin a claim using the accelerated possession procedure, you must ensure the following:

1. You have a written assured shorthold tenancy agreement with the tenants and that stamp duty has been paid if the tenancy commenced before 1 December 2003.

2. You have served a notice on the tenants under section 48 of the Landlord and Tenant Act 1987 giving the tenants an address in England & Wales where they can contact you and where notices may be served. If the tenancy agreement includes such an address for the landlord, this requirement will be fulfilled.

3. If the first tenancy agreement with the tenants is dated between 15 January 1989 and 28 February 1997, you need to check that a notice was served on the tenants in accordance with section 20 of the Housing Act 1988 (a 'section 20 notice'). This notice must have been served on the tenants before the first tenancy commenced stating that it is an assured shorthold tenancy agreement.

4. A licence has been obtained, or applied for, if the property is a House in multiple occupation (HMO) or is located in an area designated for licensing by the local authority.

5. Any deposit that has not been returned to the tenant is currently protected with a Government-approved Tenancy deposits scheme. If the tenancy started between 6 April 2007 and 5 April 2012, the deposit should have been registered within 14 days of receiving it. This time period was extended to 30 days for tenancies starting on or after 6 April 2012.

If the tenancy started as a fixed-term tenancy before 6 April 2007 and rolled over into a periodic tenancy after that date, the deposit can be registered within a grace period between 26 March 2015 and 23 June 2015 if it hadn't already been registered.

You must maintain the deposit protection if you keep the deposit and renew the original tenancy, or if the tenant remains in possession without a new agreement and becomes a periodic tenant. You should check with your scheme provider whether you need to do anything to keep the deposit protected in these circumstances.

If you don't register the deposit within the required period, you can be made to repay a sum of up to 3 times the deposit to the tenant. In addition, you wouldn't be able to serve a section 21 notice unless you first repay the deposit to the tenant.

Note that if the original tenancy started before 6 April 2007 (i.e. before the deposit protection laws came into effect), or if the tenancy rolled over into a periodic tenancy before this date, you wouldn't be liable to pay a penalty of 3 times the amount of the deposit for non-registration. This is because the requirement to register didn't exist when the tenancy started or rolled over. However, you wouldn't be able to serve a notice under section 21 unless you first repay the deposit to the tenant.

6. The tenant has been given the required information for the deposit protection scheme. You should give the tenants this information within 30 days of the start of the tenancy. (This time period would be 14 days for tenancies starting between 6 April 2007 and 5 April 2012.) You must also give this information to any person who has paid the deposit on behalf of the tenant, such as a parent or employer. If you registered the deposit and provided the prescribed information when you received the deposit, you don't need to do so again if you renew the tenancy or allow a fixed-term tenancy to roll over into a statutory periodic tenancy, so long as the deposit remains protected by the same scheme and the prescribed information hasn't changed.

If you hadn't given the tenant and (any person who has paid the deposit for them) the required information within the right time at the start of the tenancy, you can still serve a section 21 notice. In this case, you must ensure you give them this information before serving the section 21 notice. However, you can't serve a section 21 notice if you hadn't correctly registered the deposit with an authorised scheme.

7. If the first tenancy agreement was made on or after 28 February 1997, none of the tenants are employed in agriculture, whether full time or under a permit; otherwise the 'agricultural worker condition' defined in schedule 3 of the Housing Act 1988 may apply and legal advice should be taken before you proceed.

If the tenancy started on or after 1 October 2015 for a property in England, the following additional requirements must be met:

8. The possession notice isn't being used as a retaliatory eviction (under section 33 of the Deregulation Act 2015).

9. You have given the tenant the following documents (this condition doesn't apply if the current tenancy is a statutory periodic tenancy, which followed a fixed term tenancy that started before 1 October 2015):

  • an energy performance certificate (free of charge)
  • a gas safety certificate
  • How to Rent: The checklist for renting in England (published by the Department for Communities and Local Government).

This publication should be the version in circulation when the current tenancy started. If it was amended during the current tenancy, you don't have to give the tenant the new version. If you've given the tenant this publication during a previous tenancy (for the same property between the same parties), you didn't need to give the tenant another copy at the start of the current tenancy as long as you've given them the version in circulation when the current tenancy started.

If any of the above requirements have not been met then a claim for possession under the accelerated procedure is unlikely to succeed. You are advised to seek legal advice if this is the case.

If the above criteria are fulfilled

Provided you meet the conditions listed above, you can serve a notice under section 21 of the Housing Act 1988. This allows you to use the accelerated possession procedure. You can read more about this in our section 'Serving notice'.

If you have already served a section 21 notice, and the tenants have not left the property on the expiry of this notice, you may apply to the county court for an order requiring the tenants to vacate the property (Taking it to court).

Retaliatory evictions (England only)

When section 33 applies

New rules under the Deregulation Act 2015 (section 33) prevent the practice of a landlord claiming possession after the tenant has complained about the state of repair of the property. This 'retaliatory eviction' rule applies to all assured shorthold tenancies starting on or after 1 October 2015 (in England), except for statutory periodic tenancies that follow on from a fixed term where that fixed term started before 1 October 2015.

Section 33 doesn't apply if:

  • The Property has been genuinely put on the market for sale at the time the section 21 notice is served.
  • The tenant has breached a term of their tenancy agreement or used the property in an improper manner that has given rise to the condition of the property that the tenant is complaining about.

When you can't serve a section 21 notice

You cannot serve a section 21 notice on a tenant within 6 months of your local housing authority serving one (or more) of the following notices on you under sections of the Housing Act 2004:

  • Sections 11 or 12 (improvement notices relating to health and safety hazards)
  • Section 40(7) (emergency remedial action notices).

If operation of one (or more) of these notices has been suspended, you can't serve a section 21 notice within 6 months of the date that the suspension ends.

The section 21 notice will also be invalid if the tenant had already made a complaint in writing about the condition of the property (to you or your agent) before you served the section 21 notice, and:

  • You didn't respond adequately to the complaint within 14 days, setting out the proposed remedial actions and a reasonable timescale
  • The tenant then complained about the same matter to the local authority
  • The local authority served on you a Section 11 or 12 or 40(7) notice (as above)
  • You'd served the section 21 notice on the tenant after they'd complained to you but before they'd complained to the local authority, or before the local authority had served notice on you.

The requirement for the tenant's complaint to be in writing (to you or your agent) doesn't apply if they don't have your postal address or email address, or where the tenant has made reasonable efforts to contact you (or your agent) but has been unable to do so.

If the tenants are in arrears of rent

If you meet the conditions required to use the accelerated possession procedure, and your tenants are in arrears of rent, we generally recommend that you use the accelerated possession procedure. This way, you are able to get the tenants out as quickly as possible and get new tenants in who will start paying rent.

However, please note that when you use the accelerated possession procedure, the court will not order the tenants to pay any rent arrears to you. You must instead apply to the county court for a court order against the tenants requiring them to pay the outstanding rent to you.

If you do not meet the conditions listed above, and the tenants are in arrears of rent, you are advised to read our section below on applying on the ground of rent arrears for more information.

Initial steps - rent arrears

If your tenant is in arrears of rent, it is important to deal with the matter promptly. Taking immediate action will hopefully stop the situation escalating any further.

Sending an initial letter to the tenant

The first step you should take is to send your tenant a letter pointing out that he/she is in arrears of rent and requesting that these arrears be paid. We recommend that all communication you have with your tenants, including demands for payment, should be in writing. This is for your own protection in the event you have to take the tenant to court.

In many cases, the tenant will pay the rent following your requests for payment. However, it is important that you start keeping detailed records in case the tenant does not pay.

Keeping records

Delivery of the initial letter

You should record the date when the letter was sent to the tenant, who the letter was given to and how it was sent (e.g. by hand, first class post). You should make a note of what is called the 'deemed date of delivery'. This term refers to the date which the court will say that the letter has been served on the tenant, which is not the necessarily the same day that you wrote/sent the letter and is determined by the method you used to send the letter. Below you will find a table outlining the different dates of service based on how you deliver the letter. We recommend that, whenever possible, you give the letter to your tenant by hand and get them to sign a copy of the letter to confirm that you have given it to them.

Method of serviceDate of deemed delivery

Personally serving the document by handing it to the tenant

The day of personal service

Leaving the document at the property (assuming it is the last known place of abode of the tenant)

The day after it was delivered to or left at the permitted address

Registered delivery - first class (assuming it is posted to the last known place of abode of the tenant)

The second day after it was posted (so long as it is not returned)

Special delivery - guaranteed next day (assuming it is posted to the last known place of abode of the tenant)

The next day after it was posted or date of delivery advised by the Post Office (so long as it is not returned)

First class post or an alternative service which provides for delivery on the next working day

The second day after it was posted

Second class post

The third working day after it was posted

Conversations with the tenants

Although you should inform your tenant of the rent arrears in writing, you may also have spoken to the tenant about the arrears. If you have, then as soon as possible after having the conversation you should make a record of it and any other conversations you have had with the tenant as well as the outcome. Your record should include the time, date and location, as well as the name of anyone involved in the conversation and a summary of what was said and/or agreed. This information may prove valuable in case you have to take your tenant to court.

Rent arrears and financial hardship

You should start to keep a record of the rent payments due and received from the tenants, including a running balance of any arrears.

If the arrears are causing you any financial hardship then you should also retain any records or documents that you have to prove this, such as letters from your mortgage provider regarding arrears of mortgage payments, threats to repossess etc.

Giving assistance in paying rent

In your letter to the tenant informing him/her of the rent arrears, you may want to offer assistance in making their payments by allowing him/her to repay the arrears in weekly or monthly instalments. If your tenant has fallen into hard times, e.g. made redundant or recently divorced, making such an arrangement may help them pay the rent and avoid the problem escalating. If you do have to take the matter to court, showing that you have offered assistance in such a way may also help your case in court.

If the tenant does not pay

If the rent arrears continue to accrue, or if the tenants fail to pay the rent arrears after you have sent at least one letter demanding that payment be made, then you should serve a notice requiring possession of the property in accordance with section 8 of the Housing Act 1988 (the section 8 notice) (Serving notice). This notice must be served on your tenants before you can apply to the court for an order evicting them.

Under no circumstances should you attempt to evict the tenants yourself without a court order, for example, by changing the locks. Doing so is a criminal offence and you may be fined and/or sent to prison.