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There are 2 main procedural routes by which landlords of an assured shorthold tenancy (AST) can regain possession of their property under the Housing Act 1988 (HA 1988). These are:
At the outset, when serving notices, the section 21 procedure can be used in tandem with the section 8 procedure. For example, if the fixed term of the AST has come to an end but the tenant is also in breach, the landlord may serve both a section 8 notice and a section 21 notice. The landlord can then reassess the situation should it be necessary to issue proceedings and decide whether it is best to follow the section 8 procedure or the section 21 procedure.
A landlord may seek possession of a property let on an AST upon or after the expiry of the fixed term purely by proving that the property is let on an AST and by following the procedure set out in HA 1988, s 21.
The section 21 procedure can also be used in tandem with the section 8 procedure. Which process is chosen will depend upon a variety of circumstances, such as whether or not the fixed term of the AST has expired and whether or not there are any breaches.
The first step in seeking possession under HA 1988, s 21 is to serve a notice to quit. There are two forms of notice to quit, depending on whether the tenancy is a fixed term or periodic tenancy.
This must be used where the tenancy is a fixed term tenancy. The requirements are:
So, for example, if the fixed term expires on 13 December, the notice can be served on or before 13 October and stated to expire ‘after 13 December’ in order to give the tenant the requisite two months’ notice.
This must be used where the tenancy is a periodic tenancy. The requirements are:
So, for example, if the tenancy is a monthly periodic tenancy with a new tenancy arising on the thirteenth day of every month and the notice is served on 20 June, it must be expressed to expire on 12 September as this the last day of a period of the tenancy at least two months after service.
That said, the landlord does not have to specify a calendar date in the notice and many landlords instead use a formula approved by the Court of Appeal in Lower Street Properties:
‘The landlord gives you notice that he requires possession by virtue of section 21(4)(a) of the Housing Act 1988 of the dwelling house known as [address] after the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice.’ (Lower Street Properties v Jones  28 HLR 877).
It is absolutely critical that the notice is drafted and served correctly, otherwise the court will deem it invalid and the claim will fail.
If the tenant does not leave the property by the time the section 21 notice expires, the landlord may issue proceedings for a possession order.
There are two routes open to the landlord, depending upon the circumstances of the case:
This procedure is suitable where the landlord wishes to make another claim in addition to possession, such as for rent arrears, or where there are potential areas of dispute.
It involves a court hearing and is therefore fairly costly and time consuming.
This procedure is suitable where the claim is simply for possession.
There are also certain other criteria to be met, including the need for a written tenancy agreement and for full compliance with the tenancy deposit scheme.
As it rarely involves a court hearing, it is beneficial where a landlord wants to minimise time and cost and is willing to write off any other claim.
If the landlord proves his case (either under the accelerated or standard procedure), the court must grant a possession order and will generally give the tenant 14 days to leave the property, unless he can show that he will suffer exceptional hardship if evicted on short notice, in which case the court may postpone the giving up of possession for up to six weeks.
An important point to note is that the court is not allowed to make a possession order to take effect less than six months from the start date of the tenancy, whether the tenancy is for a fixed term or periodic. Therefore, even if the section 21 notice has been drafted and served correctly, the landlord cannot obtain a possession order to take effect less than six month after the start of the tenancy.
Although a possession order gives a date for possession, if that date passes and the tenant has still not left, the landlord is not automatically entitled to take back possession of the property as this would constitute a criminal offence. Instead, the landlord will need to apply to court for a warrant of possession and the court bailiffs will then set a date for the eviction (Haniff).
This was first published as a practice note in Lexis PSL Dispute Resolution and is available to subscribers of LexisPSL. If you are not a subscriber, please click here to find out more and to access a free trial.
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