Preparing for a Possession Hearing
Many landlords are now dealing with the possession process themselves, from serving notice to attending Court for a hearing. With this in mind Rebecca Brough from Fidler & Pepper gives some top tips on how best to prepare for and stand the best chance of getting possession of a rental property.
The majority of cases that actually go forward for a hearing will be possession requested under a Section 8 Notice, namely rent arrears, however, my tips apply to all types of possession, including accelerated possession.
Issues affecting a possession order at the start of a tenancy
Firstly – make sure that your tenancy is set up correctly – many of the issues affecting a possession order actually arise at the start of the tenancy:-
- Tenancy Agreement – make sure you have one, if you don’t how can a Judge consider the terms and see if the tenant has breached them? Make sure that the details and dates on your tenancy agreement are correct and there are no typing errors.
- If you have taken a deposit make sure you protect it within 30 days and give the Prescribed Information http://www.propertyhawk.co.uk/?landlords-must-have-this to the Tenant. When the tenancy becomes periodic (the fixed period has expired), make sure you re-protect the deposit and serve a new Prescribed Information. Failure to do this could result in you not being able to get possession and/or the tenant bringing a claim against you for 3 x the value of the deposit and legal costs.
- Have a rent statement – it does not need to be a rent book, just a simple spreadsheet that shows when rent is due, how much and when payment is made, make sure it is clear and easy to read, the Judge does not want to plough through loads of illegible paperwork.
- Make sure that you have all your certificates in place (i.e. Gas Safety and EPC), not having these may not prevent you getting possession but could cause problems.
Issues affecting a possession order during a tenancy
- Make sure that you make a note of any repairs that are reported to you and ensure that you attend to them as soon as possible. Failure to carry out repairs could result in a defence of disrepair being brought against you for a claim for possession on the grounds of rent arrears, this could delay matters considerably.
- Carry out regular inspections, how regular depends on how your tenants are looking after the property. If you have not been to the property for a long time you won’t know what state it is in and whether there are any repair issues that need tackling.
- If your tenant refuses access for inspections, or works and/or checks to be carried out, keep a note of all your attempts to gain access and the tenant’s response.
Grounds for possession
Check that you have sufficient grounds for possession before serving any Notices.
If there are rent arrears, in order to satisfy the mandatory ground for possession there must be 2 month’s rent arrears at the date you serve the notice and the date you go to court. There is no point serving a notice when there are just 1 month’s rent arrears because you will just have to serve another Notice.
However, if one payment of rent is missed it doesn’t mean you can’t contact you tenant, or even write a letter requesting payment.
Notice seeking possession
Make sure you get this right, if you don’t you won’t get possession. If you are unsure it is best to ask a Solicitor to do it for you, I know this will involve cost, but if you get the notice wrong, a Judge would be making this decision about 8-10 weeks down the line, it is likely that you have not received any rent during this period and you will have lost your court fee. A small investment at this stage could ensure that matters run smoothly later down the line.
Things to remember when serving a notice –
- If you need to attach any evidence to your notice, such as your rent statement make sure you do this.
- Keep a copy of the signed Notice before you serve it on the tenant.
- Make sure that the Notice is served on the tenant, the best method is always handing to the tenant, the next best is to post through the letterbox, failing this the next best is first class post – many landlords used recorded or registered post.
Making sure the tenant gets the notice
However, if the tenant has to sign for the Notice they may not be in, they may not collect it from the post office, and the notice may never reach them, or if it does it is late and they won’t have had the required time.
If you are going to post your Notice, have a covering letter and keep a copy of this. Also if you are posting the letter you need to add 2 business days on to your Notice period, ie if you have to give 14 days and you are serving the notice on Friday 13 February, it would expire on Tuesday 3 March.
If you serve a Notice by first class post the Court deem it served, even if the tenant did not receive it.
Tip for serving a notice – make a note of how you served the Notice, date and time if hand delivered or date if posted. You will need this information for the Court Forms at a later date.
Issuing a Claim for possession
- Make sure the Notice has expired before you issue the court papers as any Court papers issued before the Notice expires are invalid.
- Make sure you fill out the right court form, if you use the online possession claim this is straight forward.
- Make sure the Court receive all the supporting documents – if you use the online possession claim you will need to send them to the Court and the tenant separately. If you use the paper method these can be attached to your Claim Form.
You will need the following for rent arrears claim:-
i. Tenancy Agreement
ii. Rent statement
iii. Deposit Certificate
iv. Copy of Section 8 Notice and covering letter
v. Certificate of Service (Form N215) stating how the Notice was served
The Court papers
- Make sure you fill these out correctly as any mistakes could cause you to fail to get possession.
- Make sure you pay the Court fee, your claim will not be issued until you do.
Preparation for the Hearing
Make sure you can attend the hearing. We have had a number of cases where Agents and friends have attended for absent landlords and the Judge will not grant possession. When making a possession order the Judge has to ensure that the person stood in front of him claiming possession has a greater right than the tenant, he can only do this if you are there. If you can’t personally attend you will need to instruct a Solicitor/Barrister to act on your behalf. A Solicitor/Barrister can attend on your behalf with an Agent and/or friend.
Make sure all your paperwork is together and the Court and the tenant have received copies. .
Attending the Hearing
- Don’t be late.
- Don’t forget your paperwork. There is no harm in you taking you full tenancy file in case the Judge needs any further information.
- Have 3 copies of your up to date rent statement (one for you, one for the Judge and one for the Tenant/Solitictor), you can hand these out at the start of the hearing.
- Be prepared, you may have to go into the witness box and give evidence, this may be just on rent arrears, but if the tenant has raised any issue before or during the hearing, you may be asked other questions.
- If the Judge asks you a question, answer it, if they ask the tenant a question allow the tenant to answer (even if you don’t agree with the answer) and when the tenant has stopped talking then ask the Judge if you can reply, do not speak over the tenant or the Judge or get into any arguments, try and remain professional.
- If the Judge is going to make a possession order he will give the tenant a date to move out of the property, the minimum time is 2 weeks, the maximum times is 6 weeks. Be aware that the Judge may give the tenant the full 6 weeks.
What to ask the Judge at a possession hearing
When asking the Judge for possession, you need to also ask for the following:-
- Judgment for the rent arrears to date
- Occupation order from hearing date to the date the Judge has given the tenant to move out, this is calculated using the daily rental rate (you will have filled this in on the Court Form)
- Court fee
- If there is a deposit ask if the Judge will include in the Order an order that the deposit be repaid to you to cover some of the arrears. This is not automatic and without this in the Court Order you will have to prove to your deposit scheme that you are entitled to the deposit.
And lastly – good luck – Rebecca Brough of Fidler & Pepper
More useful stuff on possession proceedings:
• Free section 21 notice
• Possession proceedings under an AST
• Grounds for possession by a landlord
• How long does getting possession take – section 21 process
• Possession orders
• Filling out a N5B form seeking possession