Law guide: Landlords

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Overview - Recovering possession in NI

Overview - Recovering possession in NI

Contents

For initial steps to take if the tenant falls into rent arrears, see Rent arrears.

This guidance applies to all residential tenancies created since 1 April 2007.

The procedure to regain possession of the property is the same, whether you're seeking possession because of rent arrears or any persistent breach of any of the conditions in the tenancy agreement.

You must first serve a notice to quit on the tenant to give them notice of the intended date to regain possession; you must do this before you can apply to the court for an order for possession. Be aware that getting an order for possession could take a considerable period of time.

Whatever the circumstances and grounds for seeking possession, you mustn't attempt to evict the tenant yourself; you must let the courts do this on your behalf. If you take the law into your own hands, you could face criminal proceedings. You mustn't:

  • Forcibly evict or remove a tenant from a property
  • Harass a tenant in any way, such as:
    • Removing the tenant's belongings from the property
    • Shutting off services (gas, electricity, water)
    • Changing the locks while the tenant is absent from the property

Recovering possession

If you wish to evict a tenant for non-payment of rent or for the persistent breach of any of the conditions of the tenancy, you must serve a 'notice to quit' on the tenant. When you can seek possession of the property depends on the terms of the tenancy agreement and the grounds for possession.

Fixed-term tenancies

A fixed-term tenancy runs for a specified period; you can't seek possession of the property during the fixed term, unless there is a clause permitting you to do so within the agreement. Most modern tenancy agreements contain forfeiture clauses. These normally allow for certain circumstances when the landlord can forfeit and re-enter the premises (although for re-entry a court order is still required unless the tenant voluntarily leaves). Typically, these clauses allow forfeiture if there is non-payment of rent, or a substantial breach of the tenants' covenants (which is not remedied in a reasonable time after the tenant has received written notice of the breach). Some agreements also contain 'break' clauses which can permit either party to end the tenancy early provided adequate notice is provided to the other.

If the tenancy is coming to the end of its term, you don't have to serve a notice to quit; but it's good practice to serve a notice of intention not to renew the tenancy, giving the tenant at least 28 days' notice before the end of the fixed term (the length of notice is dependent on the length of tenancy – see below under 'Serving a notice to quit').

At the end of the fixed term you're free to seek possession, giving the tenant at least 28 days' written notice.

If the tenant wants to end the tenancy during the fixed term, they can serve on you a notice to quit at any point during the fixed term, giving you at least 28 days' notice. They may be liable to pay you damages (e.g. for missed rent) for breach of the tenancy agreement if they don't fulfil the full term agreed, unless there has been a substantial breach of the agreement by you. You could claim back some, or perhaps all, of your loss via the tenancy deposit. If your losses exceed the deposit held, you would have to pursue the remainder through court.

If the tenant doesn't leave at the end of the fixed term after you've served a notice to quit, you'll have to follow a specified procedure to regain possession of the property.

Periodic tenancies

A periodic tenancy runs from one rental period to the next. The tenancy must run for a minimum period of 6 months before you can seek possession, unless there is a substantial breach of covenant by the tenant.

You can serve the tenant with a notice to quit, giving at least 28 days' notice before the end of the period (i.e. 28 days before the end of the minimum 6-month period) (note that the length of notice is dependent on the length of tenancy – see below under 'Serving a notice to quit'). You can seek possession at any time after the minimum period of 6 months, giving at least 28 days' notice. You can do so without giving any reason for ending the tenancy.

If the tenant doesn't move out of the property by the end of the notice period stated in the notice to quit, you'll have to apply for an order for possession to evict the tenant.

The tenant can serve on you a notice to quit at any point during the tenancy agreement, giving you at least 28 days' notice (the length of notice is dependent on the length of tenancy – see below under 'Serving a notice to quit').

Serving a notice to quit

Once a fixed-term tenancy has ended, or a periodic tenancy has run for at least 6 months, you can serve a notice to quit to regain possession of the property.

You must serve a notice to quit in writing, giving the tenant at least 28 days' notice (under the Private Tenancies (Northern Ireland) Order 2006) to leave the property. The length of notice you must give is dependent on the length of the tenancy:

Length of tenancyMinimum notice

5 years or less

At least 4 weeks' notice

Between 5 and 10 years

At least 8 weeks' notice

More than 10 years

At least 12 weeks' notice

You can serve the notice to quit personally on the tenant or post it to them at the address of the tenancy, although it is preferable to hand deliver it. You will have to prove to the court that the notice to quit was served.

A notice to quit doesn't have to be in a set format; it can be an informal letter to the tenant giving the:

  • Reason for serving the notice to quit
  • Date when the tenant will have to leave the property

If the tenant doesn't move out of the property by the end of the notice period stated in the notice to quit, or doesn't pay the arrears and reach agreement with you that they can stay, you may apply for an order for possession to evict the tenant. A reminder should be sent to them advising that if they do not vacate the property within a certain period (i.e. seven days) then you will commence possession proceedings in the court to obtain an evictions order. The capital value of your property will determine whether the proceedings should be started in a County Court or in the High Court.

Applying for an order for possession

You will need to retain a solicitor who will handle the application to court. This is a costly process and you should therefore try and resolve the issue with the tenant before proceeding with this course of action.

If the tenancy is a fixed tenancy then you will need to provide copies of the notice to quit and any subsequent correspondence to the tenant (or from the tenant) together with proof of the rent arrears or evidence of the breach of any of the conditions under the tenancy agreement. You will also have to provide a certified extract of capital value (which can be obtained from Land and Property Services, Lanyon Place, Belfast), a copy of the tenancy agreement and proof (normally in the form of an affidavit of service) that the court proceedings and notice of hearing have been properly served upon the tenant (and any other adult occupant).

If the tenancy is a periodic tenancy then there is no need for the landlord to give any reason for ending the tenancy, however, a notice to quit should still have been served on the tenant and this will need to be provided. If you are unsure of the difference between a periodic and a fixed-term tenancy, see below under the heading 'What is the difference between fixed term and periodic tenancies?'.

This information will be sent to the court in support of your application for an order for possession together with your (or any agent or other person involved) sworn statements (affidavits). You can also seek arrears of rent or damages for property repair costs due to a breach by the tenant in the same set of proceedings, if there is any.

Landlords should note that the tenant can oppose the claim for possession once they are served with notice of the proceedings in the court.

The tenant will usually have 21 days from the date your claim is served on them by the court to lodge their defence (if any) in the court. The court will provide you a copy of the defence.

What is the difference between fixed term and periodic tenancies?

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 they do not enter into a new fixed term agreement with their landlord, then their 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.

Attending court hearing

You, or your legal representative, must attend a court hearing to present your case. The tenants may also be present at this hearing. The outcome of the court hearing will vary depending on the circumstances at the time of the court hearing.

Order for possession has been issued

Following the court hearing if the tenant does not voluntarily leave the property then you'll need to apply for a formal decree from the court office. This will be a formal record of the court judgment. You must then serve the decree on the tenant, normally by first class post. If they still do not vacate the property, you must apply via the Enforcement of Judgments Office (EJO) to enforce the judgment. The EJO will firstly serve a 'Notice of Intention to Enforce' on the tenant. If they fail to comply with the judgment after this then the EJO can continue to full enforcement. If you were awarded a money judgment as well, i.e. for rent arrears, then the EJO will seek to enforce this also.

Once the order for possession has been enforced, the EJO will arrange for enforcement officers to evict the tenant from the property and remove their possessions. It is only at this stage that you will finally be able to regain possession of your property.

You should be aware that this is not a quick process and can take a considerable length of time and cost a considerable amount of money, which you may not be able to recoup or may never recover from the tenant. This should be taken into consideration before commencing any legal proceedings.

If the tenant ignores an order for possession

If the tenant still refuses to leave after you get an order for possession from the court, you'll have to enforce the order.

You must follow the specified procedure; at no point should you take matters into your own hands. If, however, the tenant hands over the keys and moves out of the property during this process, you should contact your solicitor to advise them so that the court proceedings or enforcement in the Enforcement of Judgments Office can be stopped.

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