Possession orders and the procedure under s.21 Housing Act 1988 Part 1

Many landlords are very familiar with “the s.21 procedure” but here’s a reminder anyway (subject to restrictions on enforcement due to Covid-19)...

The landlord serves a Notice under s.21 of the Housing Act 1988, which must give the tenant a period of time in the property before the landlord can issue a possession claim (“the notice period”). The notice period is currently 6 months.

When the notice period expires, the landlord can issue a claim, using a Form N5B and paying a Court fee of £355.00. The landlord has to specify on the form whether, if the tenant asks for longer than 14 days before the possession order expires, he is content for the Court to deal with the request without a hearing.

The Court will “issue” the claim and send copies back to the landlord and the tenant. The Court will “deem” the claim to have been received by the tenant (or “served”) on a specific date. The tenant has 14 days from that date to put in a defence or to ask the Court to make a possession order for a period longer than 14 days.

If no defence is received after 14 days, the landlord can ask the Court to make a possession order by sending a form to Court that was supplied with the issued claim. Normally, there is no hearing. The Court will make an order that the tenant “do give up possession” of the property on a certain date. The date is normally 14 days from the date of the order i.e. “an order for possession in 14 days”.

The tenant then has 14 days to give up possession. If, after 14 days, the tenant does not give up possession, the landlord has to take steps to physically evict the tenant with the help of the Court Bailiff. In order to do so, the landlord applies to the Court for a “warrant of possession” (and of course has to pay a further fee - £121.00!). The bailiff will then fix a date and time for the eviction to be carried out and sends a Notice of Eviction to the landlord and the tenant. The landlord then meets the Bailiff at the property on the stated date and time. The Bailiff will evict the tenant and the landlord will change the locks.

If the tenant puts forward a Defence or asks for longer than the usual period of 14 days from the making of the order, the Court may order that there be a hearing either (a) to give “directions” or orders about how the Defence should be conducted; or if the landlord had previously indicated that he was not content for the Court to deal with the length of the possession order without a hearing, (b) a “hardship hearing” to determine how long the possession order can be in place before it can be enforced. A tenant has to show "exceptional hardship". The maximum period the Court can allow the tenant to stay in the property is 42 days from the date of the order i.e. “an order for possession in 42 days”. Once the 42 days’ period expires, the landlord can enforce the possession order by applying for a warrant of possession as above.

Because of the current delay in obtaining hearings at the County Courts due to Covid-19, it is probably better to leave it to the Court to decide how long the possession order should last before it can be enforced. A landlord that opts for a hearing will almost certainly have to wait longer for the hearing than for a possession order in 42 days to expire.

Next: Using a s.21 notice and claiming unpaid rent…