Renters’ Rights Bill 2: How to obtain possession if section 21 notices are abolished?

As the Renters’ Rights Bill proceeds through Parliament, this is one of a number of articles we are publishing looking at the proposed changes.  The article addresses reform of the English private rented sector only.  

If adopted, the proposals will mean the end of Assured Shorthold Tenancies and of no fault termination under Section 21.   

The process that will enable landlords to recover possession of their property from their private sector tenants  in England will be governed by Section 8 of the Housing Act 1988.  A landlord must cite one or more statutory grounds for possession.  These are divided into mandatory and discretionary grounds.  The Renters’ Rights Bill adds some new grounds for possession and amends others. 

What grounds are likely to be used most frequently and what’s interesting in the new proposals? 

• Mandatory Grounds: If a landlord can prove a mandatory ground for possession, the court must grant a possession order.  Examples include:
  • Rent arrears - both at the time of the notice and the court hearing in excess of two months’ rent.  That is set to increase to 3 months’ or 13 weeks' outstanding rent, with additional tenant protection to preventing landlords from relying on arrears accruing due to a delay in payment of Universal Credit.   
  • The landlord intends to move into the property as their only or principal home. This existing ground will become easier to rely on if the Bill becomes law as the current requirement for the property to have previously been the landlord's main home will be removed, with the proviso that his ground cannot be relied on in the first 12 months of the tenancy. 
  • Sale of the property (a new ground) - after the first 12 months of the tenancy the landlord will be able to serve notice on the basis they “intend to sell” the property. 
  • Ending of a superior lease (a new ground) - if a head lease is terminated the landlord to give termination notice once the superior lease is at an end. 
  • Property needed for a new employee (new grounds) - employers who house their workers will be able to rely on new grounds to regain possession of property needed to house an agricultural worker or to terminate the tenancy of a previous employee who is no longer employed by them.   
• Discretionary Grounds: These grounds give the court more flexibility, and a possession order will only be granted if the court believes it is reasonable.  Examples include:
  • Nuisance or antisocial behaviour - caused either by the tenant or a household member.
  • Breach of tenancy - if the tenant is in default in respect of one or more of the terms of the tenancy agreement.
  • Some rent arrears - falling short of those needed for the mandatory ground to apply.

Court Proceedings

If the tenant does not vacate the property after the notice period expires, the landlord will need to apply to the court for a possession order.  The court will then hold a hearing to consider the evidence.  For mandatory grounds, if the criteria are met, the court must grant possession, while for discretionary grounds, the court will weigh up the evidence and determine whether it is reasonable to grant possession. 

During the hearing, the tenant may defend the claim, for example by disputing the amount of rent arrears or raising issues about the landlord’s notice or conduct (for example, if certain statutory duties have not been complied with prior to service of notice the notice may not be valid).  Even if the court grants a possession order, tenants may request a limited stay of execution, allowing them more time to find alternative accommodation.

The time taken and expense incurred in all this should not be underestimated.

Enforcement of the Possession Order

If the tenant still refuses to leave after the possession order is granted, the landlord must obtain a warrant for possession.  This authorises bailiffs to remove the tenant and return possession to the landlord.  Eviction without a court order is illegal.

Items in this series:

Residential tenancy changes proposed by the Renters' Rights Bill, Maddie Dunn (burges-salmon.com)