Possession Claim

[jbarras75@gmail.com]

Hi,

My tenant has fallen into arrears as they lost their job and, following relevant notice from the managing agent, we've submitted a possession claim through the courts under section 21. Does anyone know if I'll be expected to turn up in court for the hearing as since I'm based in Australia it's going to be a problem?

Thanks,

Jason

[Grampa]

Hi,

My tenant has fallen into arrears as they lost their job and, following relevant notice from the managing agent, we've submitted a possession claim through the courts under section 21. Does anyone know if I'll be expected to turn up in court for the hearing as since I'm based in Australia it's going to be a problem?

Thanks,

Jason

If it is not defended (most arent) and the paperwork done correctly you shouldnt have to go to court. If it is you need to instruct a solicitor if you cannot appear..

Though there is no defence to a correctly served s21 it doesnt stop the tenant trying to put one in.

[bjmlegal]

Jason,

Rental Arrears? Section 21?

There are a few things we would recommend checking before you allow the Agent to proceed down this route. First of all the initial fixed term must have passed before you can use section 21, if not then it needs to be a section 8. Second of all is the point of arrears, if you want to claim these back then you will need to file a small claims case against the tenant alongside the section 21. If you were to go down the section 8 route a money order can be granted at the same time.

If you are at all worried about representation in court then please feel free to contact us, we are able to offer representation in any UK court.

[snorkerz]

Jason,

Rental Arrears? Section 21?

There are a few things we would recommend checking before you allow the Agent to proceed down this route. First of all the initial fixed term must have passed before you can use section 21, if not then it needs to be a section 8. Second of all is the point of arrears, if you want to claim these back then you will need to file a small claims case against the tenant alongside the section 21. If you were to go down the section 8 route a money order can be granted at the same time.

If you are at all worried about representation in court then please feel free to contact us, we are able to offer representation in any UK court.

I have to disagree with BJMLegal.

It is perfectly possible to make a monetary claim in a section 21, admitedly not on the n5b accelerated process but on a standard s21 - no problem.

The initial fixed term does not have to have passed before you can submit a claim under section 21(1)(. It must have expired before the possession date, but the application and decision can be made before the end of the fixed term. No need for an expiry date on section 21(1)(

The above limitation can also apply to section 8 if the tenancy agreement does not specify that the relevant grounds may be used.

[bjmlegal]

I have to disagree with BJMLegal.

It is perfectly possible to make a monetary claim in a section 21, admitedly not on the n5b accelerated process but on a standard s21 - no problem.

The initial fixed term does not have to have passed before you can submit a claim under section 21(1)(. It must have expired before the possession date, but the application and decision can be made before the end of the fixed term. No need for an expiry date on section 21(1)(

The above limitation can also apply to section 8 if the tenancy agreement does not specify that the relevant grounds may be used.

Flydeboy, thanks for clarifying.

Apologies Jason, I don't think we made it clear there so perhaps the post didn't read as it was intended. The original post stated that section 21 was being served by the agent, 99.9% of these will be accelerated possession and that's what the reply was based upon. As Flydeboy rightly suggests a money order cannot be obtained in conjunction with this and you would need to file to recover the money separately.

Flyde's Section 21 comments are well founded, but it is also important to distinguish between the service of a section 21 and the enforcement of it. A notice can be served within the fixed term, there is no upper limit on the time frame but it must allow at least two months notice and should not be dated to expire on or before the last day of the agreement. For example, if a Section 21 notice was issued four months before the tenancy was due to end, the notice would have to be dated after the last day of the fixed term.

Our original response to your post was relating to the enforcement of such a notice via the courts which cannot be done before the expiration of the said notice.

Thanks again for clarifying Flydeboy.

[bjmlegal]

I have to disagree with BJMLegal.

It is perfectly possible to make a monetary claim in a section 21, admitedly not on the n5b accelerated process but on a standard s21 - no problem.

The initial fixed term does not have to have passed before you can submit a claim under section 21(1)(. It must have expired before the possession date, but the application and decision can be made before the end of the fixed term. No need for an expiry date on section 21(1)(

The above limitation can also apply to section 8 if the tenancy agreement does not specify that the relevant grounds may be used.

Thanks for clarifying Fyldeboy,

Jason, apologies our original response wasn't clear and we can understand how it can be read as being incorrect. Your original post states that the agent was running with the section 21, in our experience the vast majority of claims issued by agents are via the accelerated possession route. As Flydeboy said you cannot bring a money claim at the same when using the accelerated process which is why we suggested that a separate money claim would be needed to recover any arrears.

Flydeboy's comments on Section 21 are well founded but its important to understand the difference between the serving of notice and the enforcement of it via the courts. A section 21 notice can be served within the fixed term but the requested date for possession cannot fall within the said fixed term - the tenancy must have ended before the notice can be enforced in the courts. It is this that we were referring to when advising to check with your agent because if these rules have not been followed correctly then the claim for possession will more than likely be rejected.

It is also useful to note that the 2 month notice period is a minimum requirement, you can serve notice on the tenant at any time once the tenancy has started (and the deposit has been protected), so long as the expiry date of the notice does not fall within that initial period.

If the initial fixed term has already expired then in most cases you will need to treat the tenancy as periodic and as a general rule 2 clear rental periods must be given as notice. For example if rent is paid monthly then 2 months from the day after the next rent due date would be sufficient. This would be dependent on the type of agreement you had in the first place and / or on statutory rules.

Section 8 would only be used if you were within your fixed term and wanted the tenant out without having to wait it to end before bringing action. As aforementioned a money claim can be entered at the same time as a section 8 in such circumstances.

Without wanting to advertise here, in relation to your representation worries, we can provide representation in any UK court should it ever be required.

Thanks again Flydeboy.