As a property litigator one of the questions I am routinely asked by landlords is ‘how can I regain possession of my property?‘ The answer is, frustratingly, that it depends.
The law as it currently stands primarily affords two options to landlords seeking possession of properties let on an Assured Shorthold Tenancy basis (‘AST’). Which option is best will depend on the circumstances.
Section 21 of the Housing Act 1988
This process is also known as the ‘no fault’ eviction process and is generally used when the term of an AST has come to an end and the landlord would like to recover possession thereafter (if the agreement is in writing), or during a tenancy with no fixed end date (a periodic tenancy).
The idea behind it is that landlords can bring occupation to an end, on giving two months’ notice in writing to the tenant (provided the statutory requirements have been complied with). They do not have to give a reason for doing so.
The process of recovering possession though court is also generally quicker via this route given the matter will usually be dealt with without a hearing.
Section 8 of the Housing Act 1988
This process allows landlords to evict tenants on the basis of various specified grounds only.
These specified grounds are set out in Schedule 2 of the Housing Act and include reasons such as non-payment of rent and breach of covenant.
Generally this is more expensive process in terms of time and cost than the section 21 procedure as a hearing is required.
Government Response: ‘Overcoming the Barriers to Longer Tenancies in the Private Rented Sector’
The government commenced a consultation process in respect of the private rental sector last year and has, this month, published its response entitled ‘Overcoming the Barriers to Longer Tenancies in the Private Rented Sector’.
No mistake should be made; these proposals could represent one of the most significant changes in recent memory to renting and evictions and have been described in that response as a ‘generational change to the law that governs private renting’.
At this stage the proposed changes are just that – proposals – but they are significant in terms of their application to tenants and landlords alike.
The proposed changes are as follows:
- The government intends to bring an end to ‘no fault’ evictions by repealing Section 21 of the Housing Act 1988.
As mentioned above, Section 21 gives the landlord the right to terminate a tenancy after the fixed term has expired.
In other words the proposed reform would mean that all landlords must provide a reason for any attempt to regain possession of premises let under an AST.
While the finer details are still not clear, it appears likely that a tenancy could only be determined by the landlord after such a repeal on the basis of one of the reasons which are currently listed at Schedule 2 of the Housing Act.
It seems that if a landlord cannot rely on one of those reasons then, the proposals would suggest, they would not be able to obtain possession. - The above will undoubtedly be a worry for landlords who require some surety that they will be able to recover possession of their property in the future. The government has, in its response, stated that ‘to ensure landlords have confidence they will be able to end tenancies where they have legitimate reasons to do so we [the government] will also strengthen the Section 8 possession process so property owners are able to regain their home should they wish to sell it or move into it’.
While the exact details are not yet clear it appears probable that Schedule 2 of the Housing Act will be considered and further reasons for seeking possession added to that existing list of reasons in one form or another. - Generally speaking, the Section 21 process is referred to as the ‘accelerated procedure’. The reason for this is that it is usually dealt with without a hearing should the possession go to court.
It is, therefore, a more cost and time effective route to obtain possession.
All court proceedings are subject to the objective that they must be proportionate in cost and time and so repealing Section 21 of the Housing Act would be contrary to that objective.
Unsurprisingly, the proposals also suggest that the government is considering ways in which the possession proceedings can be expedited and simplified. That includes publishing greater guidance for landlords and tenants to better understand their rights and responsibilities as well as ‘looking to free up enforcement agent (bailiff) resources to help them prioritise possession cases’.
It is fair to say that this provides some much needed protection to those tenants who feel unable to raise grievances with their landlords for fear of a receiving a Section 21 Notice as a retaliatory response.
Tenants should be entitled to raise grievances, at any time, regarding the general state and condition of the property and to be able to do so free from any fear that doing so will result in a back lash of two months’ notice being served.
That being said, the Section 21 procedure is a much more efficient and cost effective process than the Section 8 procedure which experiences more delays and costs in recovering possession from a landlord point of view. It shall come, I am sure, as little comfort to those landlords who have unwittingly let their property to troublesome tenants and who want to take quick action to recover possession.
What Happens Next?
The government has promised that it will launch a further consultation process on the details of what ‘a better system’ will look like for landlords and tenants.
The government has also promised to collaborate with and listen to both landlord and tenants together with others in the private rental sector to develop a new deal for renting. Unfortunately we are going to have to wait for more details as the government continues to seek agreement on what the final reform shall look like.
One thing is clear; the private rental sector has been targeted for change and so the system as it currently is, for now, looks anything but safe as houses.