Law guide: Property

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Accelerated possession procedure

Accelerated possession procedure

Contents

This section covers how to seek possession using the accelerated possession procedure for an assured shorthold tenancy, including:

  • Criteria that must be met
  • When and how to serve a notice on the tenant (under section 21 of the Housing Act 1988)
  • How to apply for an order for possession (if the tenant refuses to leave)

To seek possession using the accelerated possession procedure, the tenancy must be an assured shorthold tenancy – for types of tenancy, see Types of tenancy (England & Wales). There must be a written tenancy agreement.

The accelerated possession procedure allows a landlord to serve a notice on the tenant giving them notice to leave by a specified date. The notice is called a section 21 notice (because it's served under section 21 of the Housing Act 1988). In England, there is a set form which must be used for the section 21 notice, while in Wales, although it must contain certain language, there is no set form.

If the tenant doesn't leave after a valid section 21 notice has been served, you can apply to the county court for an order for possession to evict the tenant.

Criteria to be before serving a section 21 notice

The tenancy must meet certain criteria before you can serve a section 21 notice. If the criteria aren't met, a claim for possession under this procedure is unlikely to succeed (and you're advised to seek legal advice).

The rules will differ slightly depending on whether the tenancy is in England or Wales, but the following will apply to both countries:

  • The tenancy must be an assured shorthold tenancy. If the original tenancy agreement with the tenant is dated between 15 January 1989 and 28 February 1997, you must have served a notice on the tenant before this tenancy started, stating that it's an assured shorthold tenancy agreement; this is called a 'section 20' notice (because it's served under section 20 of the Housing Act 1988).
  • If the original tenancy agreement was made on or after 28 February 1997, none of the tenants may be 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.
  • You must have a written assured shorthold tenancy agreement with the tenant; stamp duty must have been paid if the tenancy started before 1 December 2003.
  • You must have served notice of your address where the tenant can serve notices on you.
  • The tenancy agreement must include an address in England & Wales where the tenant can contact you and where notices may be served; if it doesn't, you must have served a notice on the tenant (under section 48 of the Landlord and Tenant Act 1987) giving such an address.
  • You (or your agent) must have registered the tenancy deposit in an authorised scheme (and given the tenant the required information about the scheme) – see deposit protection criteria below and see Registering the deposit.

Additional criteria for England

As well as the above criteria, you must make sure that:

  • You (or your agent) have obtained (or applied for) a licence if the property is classed as an HMO, or is in a local authority area that's subject to licensing – see Overview of registration and licensing.
  • You're not seeking possession as a 'retaliatory eviction' (see below)
  • You've given the tenant the following documents free of charge:
    • An energy performance certificate – see Energy Performance Certificate (EPC)
    • A gas safety certificate – see Gas safety certificate
    • For tenancies that started on or after 1 October 2015 - How to rent checklist: The checklist for renting in England (published by the Department for Communities and Local Government) – see Tenant information checklist. 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 them another copy at the start of the current tenancy as long as you gave them the current version when the current tenancy started.

Note that:

While the requirement to give a tenant the EPC and gas safety certificate came into effect on 1 October 2015, it is likely that this applies to tenancies that began before this date. However, the law is not definitive on this point at present. If you have not given the tenant either document for a tenancy that began before 1 October 2015, you may want to consider giving it before serving the section 21 notice. It is unclear at present whether this will be considered valid under the law. You may wish to seek legal advice.

Additional criteria for Wales

As well as the criteria for all tenancies, you must also make sure that you are registered with Rent Smart Wales and, if required, obtained a licence from them or instructed a managing agent, unless you intend to live in the property.

More information about the deposit protection criteria

Registration of deposit

  • The tenancy deposit must be held in a government-approved deposit protection scheme (unless it's been returned to the tenant).
  • You must have registered the deposit within 30 days of receiving it, and given the required information about the scheme to the tenant (and also to anyone who's paid the deposit on the tenant's behalf, such as a parent or employer). Note: the time period for registering the deposit was 14 days for tenancies that started between 6 April 2007 and 5 April 2012.
  • If the tenancy started as a fixed-term tenancy before 6 April 2007 and became a statutory periodic tenancy after that date, the deposit could be registered within a grace period between 26 March 2015 and 23 June 2015 (if it hadn't already been registered). If you didn't register the deposit within the required period, you can't serve a section 21 notice unless you first return the deposit to the tenant.
  • You must maintain the deposit protection if you keep the deposit and renew the original tenancy, or the tenancy becomes a statutory periodic tenancy (at the end of a fixed-term tenancy and the tenant stays in possession of the property without a new agreement). You should check with your scheme provider whether you need to do anything to keep the deposit protected in these circumstances.

Providing the prescribed information to the tenant

  • Within 30 days of receiving the deposit (14 days for tenancies that started between 6 April 2007 and 5 April 2012) you should give the tenant and any person who has paid the deposit for the tenant certain information required by law (prescribed information). See Prescribed information.
  • If you provided the required information about the deposit scheme when the deposit was received, you don't need to provide it again when you grant another fixed-term tenancy to the same tenants for the same property or let a fixed-term tenancy become a statutory periodic tenancy, as long as the deposit stays protected by the same scheme (and the information you're required to give the tenant hasn't changed).

You can still serve a section 21 notice if you didn't give the tenant (and anyone who's paid the deposit for them) the required information at the start of the tenancy as long as you give them this information before serving the section 21 notice. But you can't serve a section 21 notice if you haven't correctly registered the deposit with an authorised scheme (unless the deposit has been repaid).

Retaliatory eviction (for tenancies in England)

You can't serve a section 21 notice to seek possession after the tenant has complained about the state of repair of the property. This is called a 'retaliatory eviction'.

This rule doesn't apply if the:

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

When will serving a section 21 notice be invalid

A section 21 notice will be invalid in the following circumstances (and a claim for possession is unlikely to succeed).

You can't serve a section 21 notice on the 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.

You can't serve a section 21 notice 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 actions and a reasonable timescale to remedy the complaint
  • 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.

When you can serve a section 21 notice

Tenancies in England starting before 1 October 2015 and all tenancies in Wales

You can serve a section 21 notice on the tenants any time after the tenancy has started. However, you can't serve a section 21 notice before the tenancy commences or it will be invalid.

You would not be entitled to start a claim for possession within the first 6 months of a new tenancy, or within 6 months of the start of the original tenancy where there is a replacement tenancy. A replacement tenancy is one that replaces another tenancy for the same property between the same landlord and tenants.

Tenancies in England starting on or after 1 October 2015

You can't serve a section 21 notice within the first 4 months of a fixed-term or contractual periodic tenancy (or for a replacement tenancy, within 4 months of the start of the original tenancy).

You would not be entitled to start a claim for possession within the first 6 months of a new tenancy, or within 6 months of the start of the original tenancy where there is a replacement tenancy. A replacement tenancy is one that replaces another tenancy for the same property between the same landlord and tenants.

Length of notice

The length of notice you must give depends on the type of tenancy (fixed-term, contractual periodic or statutory periodic), whether the property is in England or Wales and when the tenancy started.

These are minimum notice periods. If you're able to give the tenant longer notice, the risk of a dispute is likely to be reduced.

Fixed-term tenancy

You must give a minimum of 2 months' notice. The 2-month period starts on the day after the notice is served. For example, a fixed-term tenancy is due to end on 25 July and you want the tenancy to end on that date: the latest date that a notice could be personally served on the tenant is 25 May.

You can choose to end the tenancy on the date the fixed term is due to end. Or you can serve a notice during the fixed term, to expire after the fixed term has ended. You can't end the tenancy before the end of the fixed term unless there is a break clause that allows you to.

If you are sending the section 21 notice by 1st Class post, you must allow at least 2 extra working days for delivery time on top of the notice period.

Statutory periodic tenancy

You must give a minimum of 2 months' notice. The 2-month period starts on the day after the notice is served. For example, if you want the tenancy to end on 25 July, the latest date that a notice could be personally served on the tenant is 25 May.

The notice doesn't need to end on the last day of the period (e.g. a month if the rent is paid monthly). If the section 21 notice ends in the middle of a rental period, the rent should be apportioned for that period. The tenant must be repaid rent they paid in advance for the period after they have left the property.

Contractual periodic tenancy

The length of notice ('notice period') depends on whether the property is in England or Wales, and when the tenancy started.

Contractual periodic tenancies in Wales

You must give at least:

  • 2 months' notice for weekly, fortnightly and monthly tenancies
  • A full period's notice for quarterly and 6-monthly tenancies
  • 6 months' notice for yearly tenancies

A full period's notice for quarterly and 6-monthly tenancies means a notice that includes the first and last day of a tenancy period (for example, for a quarter 24 March-23 June, notice must be given on or before 24 March and expire on or after 23 June; giving notice on 1 April and ending 3 months later wouldn't cover a full tenancy period).

The notice period must end on the last day of a tenancy period, which means you might have to give more than the minimum notice so that it ends with this date. For example:

  • Monthly tenancy where the rent is payable in advance on the 6th of each month and a section 21 notice is served on 26 March: although 2 months will have passed on 26 May, the notice must expire on 5 June to coincide with the end of a tenancy period.
  • Quarterly tenancy with quarters starting on 25 March, 24 June, 29 September and 25 December: you must give at least a full quarter's notice and the notice must expire on the last day of a quarter. So, for example, if you give notice on 20 February, the earliest the notice can expire is 23 June, giving a full quarter's notice (25 March-23 June).
  • 6-monthly tenancy with periods starting on 1 January and 1 July: you must give at least a full 6-month period of notice and the notice must expire on the last day of a 6-month period. So, for example, if you give notice on 20 February, the earliest the notice can expire is 31 December, giving a full 6-month period of notice (1 July-31 December).
  • Yearly tenancy, starting on 1 January: you only need to give at least 6 months' notice and the notice must expire at the end of a year. So, for example, if you give notice on 20 February, the earliest the notice can expire is 31 December, giving more than 6 months' notice and expiring at the end of the year.

Contractual periodic tenancies in England

The requirement for a section 21 notice for a contractual periodic tenancy to end on the last day of a tenancy period doesn't apply. The notice can end on the last day but can also end on any day after the last day of the tenancy period. However, a complete period's notice must still be given.

For a monthly (or more frequent) tenancy, you only need to give 2 months' notice as this will be longer than one full rental period. If the section 21 notice ends in the middle of a rental month, you should apportion the rent and repay to the tenant the rent paid in advance for the period after they've left the property.

For a quarterly or six-monthly tenancy, the notice must cover a full period of the tenancy, but can end on or after the last day of that period. For example, for a quarterly tenancy, with quarters starting on 25 March, 24 June, 29 September and 25 December, any notice given, for example, after 25 December and before 25 March must expire on or after 23 June (as it doesn't have to expire only on the last day of the quarter). For a yearly tenancy the notice must be at least 6 months and must expire on or after the last day of the tenancy period.

How to serve a section 21 notice

As a section 21 notice is a notice served under legislation (i.e. the Housing Act), it is called a 'statutory notice'.

If it is necessary for a landlord to start possession proceedings, they will be expected to provide to the court a copy of the section 21 notice that they have served. Therefore a landlord should keep a copy of the section 21 notice as well as any proof that it has been sent to the tenants.

For tenancies in England, you must use a specific form to serve a section 21 notice.

For tenancies in Wales, there's no specific form for serving a section 21 notice.

If more than one tenant lives in the property, you should serve a copy of the section 21 notice on each of them. This isn't a legal requirement, but it's best practice to be able to show that each tenant was given the required length of notice.

If the tenancy agreement has a paragraph about serving notices

If the tenancy agreement says anything about serving notices, you must be sure that it also includes serving 'statutory' notices. Not all tenancy agreements state this specifically.

Some tenancy agreements include a paragraph stating that notices must be served using 'Section 196 of the Law of Property Act 1925'. It states that notices:

  • must be in writing;
  • must be addressed to the tenant; and
  • can be served by:
    • leaving it at the last known address where the tenant lives; or
    • sending it by recorded or special delivery at the last known address where the tenant lives so long as it is not returned by the postal operator (so you won't have to prove that it was delivered to the tenant).

Again, it must also clearly state that this includes service of 'statutory' notices as well.

If statutory notices are mentioned, then you should serve the section 21 notice in the way set out in the tenancy agreement. If the tenancy agreement allows you to service by fax or email, this isn't recommended as it is harder to prove that the tenant received the notice.

If the tenancy agreement contains a paragraph about how to serve notices, but it is unclear whether it applies to statutory notices, you should seek legal advice. Otherwise, if the correct procedure is not followed the section 21 notice could be served incorrectly and be invalid.

If the tenancy agreement doesn't have a paragraph about serving notices

If the tenancy agreement doesn't say how notices must be served you can do it personally or by post.

The best way to serve the notice is by personally serving it on the tenant. You should include a covering letter, and serve each tenant with a copy of the notice. You're recommended to print an extra copy of the notice for each tenant to sign and date to keep for your records.

Otherwise, you must serve the notice by post, making sure that it and any covering letter is properly addressed to the tenant and pre-paid. Since you will have to prove that it was delivered, you are recommended to use Recorded Signed For or Special Delivery. If you use ordinary post, you should obtain a receipt of posting from the postal service and follow it up by contacting the tenant to confirm receipt.

Applying for an order for possession

If the tenant doesn't move out of the property by the end of the notice period stated in the section 21 notice, you can apply to the county court for an order for possession. This is called making a claim for possession.

You must apply to the county court in the area where the property is located. To find the address of the court, use the HMCTS Court Finder.

You can contact the court Monday to Friday, 10am to 4pm.

You will not be given a possession order within the first 6 months of a new tenancy, or 6 months of the start of the original tenancy where the current tenancy is a replacement tenancy, i.e. a tenancy for the same property between the same parties starting immediately after the original tenancy expires.

For tenancies in England, you must start a claim for possession within a certain time after serving a section 21 notice; if you don't, your section 21 notice will expire and you'll need to serve a fresh notice. You must apply to the courts:

  • Within 6 months of the date the section 21 notice was served; and
  • For tenancies starting on or after 1 October 2015, within 4 months of the specified date for possession if notice of longer than 2 months is required (for example, for a quarterly tenancy).

Documents you must send to the court

You must send all required documents to the court, and a cheque for the court fee made payable to HMCTS. To find the amount of the court fee, see leaflet EX50 on The Court Service website.

You must send:

  • Form N5B (Claim form for possession of property – accelerated procedure).
  • Tenancy agreement (current and original if you've granted more than one tenancy agreement to the same tenant at the same property).
  • Section 21 notice and proof of service (such as a recorded delivery receipt). If you don't have proof of service of the section 21 (and section 20 notice if applicable), you may need to complete a certificate of service (Form N215) or a witness statement to provide evidence of how the notice was served. Some county court judges have been known to require a certificate of service or witness statement rather than just attaching a copy of the section 21 notice signed by the tenant to the claim form.

You must also send the following documents, if applicable:

  • Proof that the tenancy deposit has been registered in an authorised scheme - (if the deposit hasn't been returned to the tenant since the section 21 notice was served). For more about registering the deposit see Registering the deposit.
  • Licence (or evidence that it's been applied for) if the property is a Houses in multiple occupation (HMOs) or is in an area designated for licensing by the local authority (see Overview of registration and licensing).
  • Section 20 notice (if applicable – see above) and proof of service.

You may need to pay stamp duty on the tenancy agreement before sending it to the court if the tenancy started before 1 December 2003.

When the court gets the claim

The court will:

  • Issue the claim
  • Give it a claim number (the court's reference number)
  • Write to you to confirm that the claim has been served and the date of service
  • Send a copy of the claim to the tenant (with a date to respond by)

The tenant will have 14 days (from the date of service) to send a defence to the court (for example, to say why they oppose the claim or asking for a postponement of possession on the ground it would cause them exceptional hardship). The court can accept a defence if the tenant files it with the court after 14 days but before you ask the court for a possession order.

The court will send you either:

  • a copy of the tenant's defence (if any); or
  • a form to fill in to ask the court to make a possession order (if the tenant sends no defence).

You'll have 3 months to fill in the form to ask the court to make a possession order. If you don't return the form to the court within 3 months, your claim will be put on hold.

What the court may decide

When the court gets your request for a possession order, or the tenant's defence (opposing the claim for possession), the claim will be referred to a judge.

The judge can decide to make an order for absolute possession of the property; this means you won't need to attend a court hearing and the tenant must leave the property by a specified date (usually within 14 days from the date of the possession order).

If, however, the judge isn't satisfied that the claim form for possession of the property (form N5B) was served on the tenant or that you've properly established a right to possession, the judge may set a date for you to attend a court hearing (or even dismiss the claim).

If the tenant applies to postpone possession because of 'exceptional hardship' and the court accepts this, the court may give the tenant up to 6 weeks to leave the property (instead of the usual 14 days). If this happens, you (or your legal representative) can ask to attend a court hearing to raise objections to the tenant's application to postpone possession.

If the tenant ignores an eviction order

You must not evict the tenant yourself.

If the court makes an absolute order for possession and the tenant doesn't leave by the date stated in the possession order, you must:

  • Apply to the court for a warrant for possession – using court form N325.
  • Send this form to the court, with a cheque for the court fee made payable to HMCTS. To find the amount of the court fee, see leaflet EX50 on the Court Service website.

The court will arrange for court bailiffs to evict the tenant on your behalf.

Be aware that if the tenant doesn't move out by the date stated in the possession order and you ask them to pay rent, the court could rule that a new tenancy has arisen. You may be entitled to be paid damages if they remain in possession without permission. You should seek legal advice in these circumstances.