Tenants rights in eviction process

All private and residential tenants regardless the type of tenancy (assured or assured shorthold tenancy - AST) couldn’t be evicted without a court possession order. Even if landlord was granted with possession order, then only enforcement officer or bailiff have right to evict tenant(s).

What tenants should received before the eviction?

In case of AST tenancy(periodic or fixed term) landlord must send a possession notice or notice to quit based on one of the rules – Section 21 or Section 8.

Section 21 eviction route

Section 21 notice is served after the fixed term of a contract or by the end of period (month or week). Without proper notice and the specified grounds landlord has a risk to have claimed possession order dismissed. Another example, when section 21 notice may be invalidated if the deposit wasn’t secured under one of the schemes.

Section 8 route

Section 8 notice have a specific form and may be served just in case of rent arrears or breaching tenancy. Section 8 notice must contain one of the ground rules of seeking possession by the landlord which are specified in Schedule 2. Check carefully that this type of notice is complied with a law(notice form templates).

If  landlord is using a mandatory grounds the court has no choice but to make a possession order if it is satisfied that the ground exists.

In case of discretionary grounds for possession the court only makes a possession order if the ground is proven and it is reasonable to do so.

In case of assured tenancy (contract was signed before 15 January 1989 or 27 February 1996 but tenants didn’t get a Section 20 notice) landlord must give section 8 notice using special form where proper grounds were noted.

When landlord has right to claim possession order in the court?

Landlord may claim court possession order just after the notice period is expired. Section 8 notice has min 2 week, section 21 notice – min 2 months of the notice period.

In case of tenant fails to pay a rent and rent arrear more then 2 months landlord will have a chance to get a possession order. But if the rent arrears less then 2 month then court may issue a suspended possession order that let tenant to occupy property if they pay a rent and will do it on monthly or weekly basis.

In many cases rent arrears is the main reason of ending tenancy and claiming property possession order.

Tenants’ Defence

As soon as landlord start claim and files claim form to the County court tenant gets a copy of claim and particulars of claim together with defence form.

Tenant have 14 days to prepare his reply in paper or online if PCOL was used to start proceedings.  Also, tenant may issue a counterclaim that must be filed and served alongside with a defence, CPR 55B:

Defence

7.1  A defendant wishing to file –

(1) a defence; or

(2) a counterclaim (to be filed together with a defence) to a claim which has been issued through the PCOL system,

may, instead of filing a written form, do so by –

(a) completing the relevant online form at the PCOL website; and

(b) if the defendant is making a counterclaim, paying the appropriate fee electronically at the PCOL website or by some other means approved by Her Majesty's Courts and Tribunals Service.

Form N11 – court defence form for tenant in case of standard possession procedure

Form N11b – tenants’ defence form for accelerated possession procedure

In his reply tenant should provide any details that is relevant to his tenancy which support his position. Example of important evidences:

  • the rental house is in poor state  or/and landlord refuse to repair
  • your landlord did not follow the proper procedure when increasing your rent
  • the rent arrears are less than stated in particulars of claim(provide schedule and proof of payments, such as a bank statements)

Under CPR 55.7 fail to complete reply or attend a hearing usually is taken into account by the judge when deciding what order to make.

Also if tenant couldn’t prepare his defence he may attend a hearing and explain his position. It may be the best rather then not attend a hearing.

How to delay eviction it?

Your tenants can ask a judge to ‘suspend’ the warrant for possession at a new hearing . The judge could delay the eviction or let the tenants stay in your property if they can make payments again. Tenant must use court form N244 to delay an eviction and pay court fee £255(2017). Application doesn’t automatically delay eviction and judge will take a decision based on provided evidence.

For example, landlord may be granted suspended possession that allows tenants who will suffer serious hardship in result of eviction to stay in rental property as long as they meet conditions such as paying outstanding rent and proceed further weekly or month payments.

Appeal the possession order

Tenant may appeal the possession court order just in two cases:

  • landlord failed to comply with notice procedure
  • judge made the possession order in error

If tenant wasn’t aware about the possesion claim or have a reasonable explanation of missing court hearing where the possession order was granted to the landlord, he may to ask court to set aside order. Alongside with explanation tenant must provide evidences that his case is successful. Otherwise, order will be enforced without changes. Thus, missing the hearing is not only reasonable cause to set aside possession order.

Court form to appeal possession order- N161

Court fee for appeal – £140

Guidance what to do if you want to appeal.

Guide how to complete form to appeal eviction.

Useful links: