One of the essential documents to consider in relation to regaining possession of any residential property, especially rented property, is the original tenancy agreement. It is important to keep the original documents or to see if you can obtain an original of the document to verify that these have been ‘properly signed’.
The Date of Commencement of the Tenancy is Crucial.
If the tenancy is an assured tenancy, then it would have commenced before 28th February 1997. In that situation, it is more difficult for the landlord to regain possession of a rented property. It is only possible to regain possession of a property let under an assured tenancy if certain statutory grounds (arrears of rent or breach of tenancy) are met.
Importantly, you should look to see whether there are any claims by the tenant against the landlord, as these often can amount to a defence against any possession claim.
It is important to choose the best ground to possess the property and to choose the ground that will ultimately persuade the court to grant possession otherwise proceedings could be lengthy and costly with tenants’ claims and counterclaims.
Also careful consideration needs to be given if the tenant is in receipt of benefits, because Courts may often adjourn the proceedings to allow the tenant to pay off any arears.
If the tenancy is granted after 28th February 1997, then it will automatically be considered to be an assured short hold tenancy. There is a fast procedure for claiming possession of a rented property let as an assured short hold tenancy often involving any Court hearing, if all the conditions for getting possession are established. Then the deposit arrangements need to be checked carefully to ensure that the deposit has been properly protected. If the property is one in multiple occupation a license for multiple occupation needs to be obtained to ensure that possession can be obtained using this procedure.
An order for possession can be obtained using this procedure as the tenant of the rented property will have no defence, if all the deposit arrangements have been complied with. Therefore, if the landlord’s main concern is to regain possession, then this ground for obtaining possession should be used. If there are significant arrears of rent then separate proceedings for possession on the grounds of rent arrears will need to be considered. If there are problems with the deposit arrangements or licensing, if the quick possession procedure cannot be used.
It may be best for the landlord to obtain possession using the assured short hold tenancy route and then make a separate financial claim against the tenant for arrears. If the tenancy agreement of the rented property contains a guarantee clause, then this clause would need to be checked to ensure that the guarantee obligations apply to all arrears and we can offer to issue a successful claim against the guarantor for arrears of rent.
The initial choice of possession proceedings is crucial and the ground upon which to proceed. Accordingly call us for expert advice and assistance in relation to this area.
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