How to Apply for a Possession Order
In most circumstances, a landlord will be able to regain possession of their property if needed, without going through the process of applying for a possession order. However, if you are struggling to get a tenant to move out of your property, you may need to escalate further.
This guide should help you navigate the process of applying for a possession order, with detailed information and a step-by-step guide to putting in a claim.
Understanding Possession Orders: What They Are and Why You Might Need One?
A possession order is a legal document issued by a court that forces a tenant to leave a property, and therefore allows a landlord to regain access. This is typically only ever needed when a tenant is refusing, or has failed to, vacate the property after a notice has been served.
If your possession order application is being made on the basis of damage to your property, it is important that you have the right evidence to support these claims. We can help you to understand the importance of having inventory reports carried out on your property.
Key Steps Before Applying for a Possession Order
It is important to know exactly when you are able to apply for a possession order against your tenant. The first step in the process is making sure you’ve served the correct notice, and that this was clearly set out in the tenancy agreement at the beginning.
Serving Notice to Your Tenant
In order to start the process of submitting a possession claim, you need to make sure you have served the right amount of notice prior to escalating further.
This should be written in the tenancy agreement you put together, and your tenant signed, at the beginning of the tenancy. Generally a Section 21 (no-fault eviction) requires at least a 2 months notice for a tenant to move out.
A Section 8 notice (fault-based eviction), on the other hand, can vary from 2 weeks to 2 months, depending on the grounds for eviction. In order to prove fault, you may need to have a mid-term inspection carried out on the property, which can then be compared to the check-in report to identify where damage has been caused.
Choosing the Right Procedure
There are different procedures you may need to take, depending on the circumstances for evicting your tenants.
Standard vs. Accelerated Possession
The two main types of possession order are a standard possession order, and an accelerated possession order.
Section 8: Possession Order
A standard possession order is used to regain possession of a rental property, often due to rent arrears, breaches of the tenancy agreement, or other valid reasons.
Typically, this type of eviction is served using a Section 8 notice, meaning there is a valid reason for wanting the tenant to leave your property.
For a possession order to be granted, a court hearing is usually required. This is so you (the landlord) can provide evidence of damage and/or fault, to support the claim for possession. The inventory reports carried out at the beginning and during the tenancy will prove invaluable in cases where damage has been caused to the property, as it provides photographic evidence of the condition of the property before and after.
If the judge agrees with your claims that the tenant has breached their contract, they will issue a possession order specifying a date by which the tenant must leave. If the tenant fails to vacate, you can then escalate further by requesting a warrant for possession.
Section 21: Accelerated Possession Order
An accelerated possession order works differently, as this is used when a Section 21 notice has been issued, meaning there is no fault. Reasons for this may be wanting to move back into the property yourself, or wanting to sell the property.
Once you serve a Section 21 notice, your tenants will be given a date they need to be out of the property before. If they fail to vacate after this period, you can apply for an accelerated possession order.
Typically, no court hearing is required for an accelerated possession order, unless the tenant raises a defence.
If your tenants still don’t leave after the date given by the accelerated possession order, you can request a warrant for possession for eviction by bailiffs.
Starting a Possession Claim: A Step-by-Step Guide
There are several important steps you must take to submit a possession order. Each case will be slightly different, and you may need to seek more specific advice, but here’s a typical step-by-step guide showing how to navigate the process…
1. Apply to the court for a possession order
Filling in the application
Once you have passed the period of notice given when either the Section 8 or Section 21 notice was served, you can apply for a possession order.
A standard possession claim is issued on form N5. If you’re applying for an accelerated possession order from a section 21 notice, the application should be submitted using form N5B.
Paying the fees
There are fees involved in making a possession claim.
For both standard possession claims and accelerated possession orders, the fee is £391.
There may also be extra fees involved in the process of regaining possession of your property, including:
Warrant of possession (if needed): £143
Legal representation (if needed): Varying
Escalating to high court (if needed): Varying
2. Complete and send particulars of claim
A standard possession order requires a particulars of claim (form N119), which gives more details of the property, the tenant, and the grounds for possession.
This document explains to the court why you are seeking possession and must include all relevant details such as rent arrears, breaches of the tenancy agreement, or the expiration of the tenancy.
3. Sign a statement of truth
The two previously submitted forms (N5 and N119) then need to be verified by a statement of truth signed by you (the landlord), or your legal representative.
By signing this form, you are confirming that the information provided is accurate and truthful to the best of your knowledge. Making a false statement can result in legal penalties, so it's crucial that all information is correct.
4. Attend the court hearing (if required)
After submitting a standard possession order, a court hearing will be scheduled. You’ll need to attend this hearing, where a judge will review the case. Make sure to bring all necessary documentation and evidence to support your claim.
For accelerated possession orders, a court hearing is not required unless the tenant disputes the order and refuses to vacate the property.
What Happens if a Tenant Ignores a Possession Order?
If a tenant ignores a possession order and still doesn’t vacate your property by the date given, there are several options you may wish to take:
(H3) Apply for a Warrant of Possession
The most common next step to take is applying for a warrant of possession. This authorises bailiffs to enter the property and physically evict the tenant and their belongings. As mentioned previously, should it come to this, there is an additional fee of £143 payable by you.
(H3) High Court Enforcement
In more extreme cases, you may be able to transfer the case to the High Court.
This may be a quicker process than using county court bailiffs, as High Court Enforcement Officers (HCEOs) will evict the tenant. However, you will be required to pay a fee to request the transfer to High Court, as well as fees for the HCEOs, which could add up to a significant amount more.
Can a Tenant Appeal a Possession Order?
Yes, a tenant can appeal a possession order if they wish to. There needs to be valid grounds for appeal, and the appeal typically needs to be made within 14 days from the date of the possession order.
Many tenants will choose not to take this route, as it can involve significant costs and is time-consuming.
Having said this, you should be prepared for this to happen if you are submitting a possession order. Make sure you have followed the correct steps for serving notice and submitting forms to the court, to avoid any issues later down the line.
(H3) Defending Against Tenant Counterclaims
Defending against tenant counterclaims during a possession claim can be a complex process, and will likely require legal guidance and/or a legal representative.
Hopefully it won’t come to this, but if you feel you have the evidence to defend against a counterclaim, it may be worth doing. You must consider the costs involved, as these are additional to any fees paid previously. These include legal fees and possibly costs to the tenant if you aren’t able to successfully defend their counterclaim.
Next Steps: What Happens After Approval?
If you do submit a successful possession order, the tenant will be given a date by the court by which they need to have vacated your property.
A possession order from the court is usually enough to force a tenant to move out. So hopefully, the tenant will adhere to this order and leave your property. You will then have possession of your property back, and no further action will be required.
If the possession order includes a claim for rent arrears or legal costs, you can pursue the tenant for these amounts. Unfortunately, this may involve further legal action if the tenant does not pay voluntarily.
Once you regain access to your property, it is important to document the condition of the property post-eviction, in case of future disputes. You can do this by having a check-out inventory report carried out.
In need of professional inventory reports for your rental property? Whether you’re preparing for a possession order application or not, it’s important to keep track of the condition of your property. View sample inventory reports from Arnold Inventories, and get in touch for more information on our services.
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