Property Possession - Frequently Asked Questions

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21 January, 2021

Covid-19 has had a significant impact on Landlords and their ability to re-gain possession of their properties. Extensions to notice periods, stay on proceedings, a winter truce, have all played their part. Where are we now? What can a Landlord do? Here are some FAQs to help you on your way to re-gaining possession of your property.

Can I issue a Notice for Possession?

YES! In fact, we strongly advise you to. The minimum notice period has been extended in most cases up to 6 months depending on your grounds for possession. The most common ground is rent arrears. If the arrears are less than 6 months then a minimum of 6 months' notice must be given. If the arrears are over 6 months, then a minimum of 4 weeks' notice must be given.

Get your notice in as soon as possible. If you wait until after the end of the winter truce, you will have another long wait before you can even apply to the court.

My Notice has expired, but the tenant is still in the property - what can I do?

Issue court proceedings. The only way to remove a tenant from a property is via a Court Order, so you must issue court proceedings. There is nothing stopping a Landlord from issuing court proceedings once the Notice has expired. We recommend issuing proceedings as soon as your Notice has expired.

I've issued proceedings, now what?

The Court will list a Review Hearing which allows the Court to consider the papers. As the Claimant, it will be up to the Landlord/their Solicitor, to prepare, file and serve on the tenant, a bundle of documents which the Court will need to review. The Landlord does not need to attend the Review Hearing, but will need to be available to speak with the Court via telephone.

At this Hearing, the Court has the power to list the matter for a final Possession Hearing if everything is in order, issue further Directions if more information is required or dismiss the case entirely.

I've had my final hearing, and I've been granted a Possession Order - what next?

Once you have your Possession Order, you can enforce it against the tenant, which may involve instructing Bailiffs to remove the tenant from the property. At the moment this is not possible, but having the order already puts you at the start of the queue when evictions resume.

What is the "Winter Truce"?

The winter truce is an agreement reached with Enforcement Agencies not to enforce Possession Orders during winter. This does not stop you from obtaining your Possession Order from the Court, it simply means that once issued, the Enforcement Agents are not removing people from properties - save for certain scenarios, for example in domestic abuse cases.

The truce was due to cover the Christmas period up until the 11 January 2021, however, due to the third lockdown this date was pushed back to the 21 February 2021.

When can enforcement start?

At present, Enforcement Agents must give the tenant 14 days' notice before taking action. Therefore, the earliest that tenants can be removed is the 08 March 2021.

I think my tenant has left - can I just go and change the locks?

The short answer is no. Before entering the property, you need to have either a Court Order or the tenant must have surrendered the tenancy. It is not uncommon for tenants to leave a property without speaking to the landlord or without returning the keys.

If you believe this has happened, make enquiries of the neighbours; when was the last time the tenant was seen? Did the tenant say anything? Did they see moving vans? Look through the windows; can you see furniture or evidence the property is lived in? Once these enquiries have been made, if you are confident the tenant has left, you may enter the property, however, you must still be vigilant. Is there any evidence that someone is living there - a used bed, clothes in the wardrobe, food in the kitchen? If you are satisfied that the property is not lived in and your tenant has left and taken their belongings, then you may take back possession of the property and change the locks. We would strongly urge caution in taking these steps and advise that the safest option is to obtain a Court Order.

I've issued a Notice but my tenant is still not paying rent, what can I do?

There is no quick fix. If you have issued a notice relying on rent arrears, and the tenant is still not paying the rent and refuses to leave, then you must issue proceedings and claim the arrears. If successful, the Court will order that the tenant vacate the property and pay the arrears.

If the tenant leaves without you needing a Court Order, but is still in arrears, you can bring a claim at Court for recovery of those arrears.

How long will Court Proceedings take?

This depends on the Courts and their capacity. Because the Courts were unable to deal with cases during the summer of 2020, they are still dealing with a backlog, in addition to new cases issued since September. Whilst the Courts are working tirelessly to keep cases moving forwards, the process is not as quick as we would like it to be.

We are noticing that many cases have a Review Hearing listed for around 6-8 weeks after proceedings are issued. The aim is for a Final Possession hearing to then be listed 4 weeks after the Review Hearing. These timelines are merely a guide and are very dependent on the Court's capacity.

For more information contact Samantha Abdoollah in our Dispute Resolution department via email or phone on 01254222456. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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