2020-02-17
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Proceedings for Breach of Tenancy

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Posted by Mary Rouse on 11 June 2019

Mary Rouse Partner

If your tenant has breached one or more of the conditions of tenancy, i.e. by not paying rent, and you have warned the tenant that possession is required by serving a S8 Notice, proceedings can be issued once the notice expires.

This is an application to the county court for an order for possession to be made.  The application may require supporting evidence such as a witness statement to set out the breaches for the court.

This procedure is potentially available to you if:

  • There has been a breach of tenancy
  • You have served a valid S8 Notice
  • You are able to evidence the breach

Grounds for possession

The grounds for possession are set out in Schedule 2 o the Housing Act 1988. Some of the grounds are discretionary which means that the court decides whether you are entitled to possession.  Some are mandatory which means that the court must give you possession.

An example of a discretionary ground – Ground 13: The condition of the property has detiorated. The court would view the evidence such as photographs. If the judge considered that the tenant had made an effort to improve things, he may postpone or suspend possession for a period of time, to give the tenant a chance to put right the breach.

An example of a mandatory ground – Ground 8: If the rent arrears are more than 2 months or 8 weeks when the notice is served, and more than 2 months or 8 weeks at the date of the hearing, the court must give you possession. It cannot suspend or postpone possession on terms for repayment.

Rent arrears and costs

Under this procedure, you can claim a money judgment for any outstanding arrears and for at least some of your costs.

The court order

Once proceedings are issued, a hearing will be fixed for the court to decide what order to make. If you have asked for a money judgment, the court will also decide about this.  It is worth considering asking the court to grant permission for the case to be transferred to the high court for enforcement of the possession order – see ‘What if my tenant does not leave when the order expires?’. The court does not have to grant permission and this will be at the discretion of the judge.

Can my tenant challenge the making of a possession order?

Your tenant can defend the proceedings if they disagree that there has been a breach.  If a defence is served, the court will give directions as to how the case should proceed to trial.  It may be possible to persuade the court to strike out a defence if it has no real merit.

What if my tenant does not leave when the order expires?

If your tenant does not vacate, you can issue a possession warrant, asking the court bailiff to fix an eviction appointment.  Your tenant will have to leave when the bailiff attends at your property on the eviction appointment.

The county court bailiffs are very busy and it can take months to obtain an appointment.  If you have requested permission to transfer your case to the high court, you will be able to instruct a high court enforcement officer who can usually recover possession for you more quickly.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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