AA Legal Documents

Initial steps to take

Contents

Initial steps in the accelerated procedure

If you are a landlord who has granted an assured shorthold tenancy, you are entitled to regain possession of your property under the provisions of the Housing Act 1988 at any time after the end of a fixed-term tenancy, or sooner if a break clause has been used to end the tenancy early, or any time during a periodic tenancy, provided that the tenants have occupied the property for at least six months since the start of the first tenancy agreement.

This is commonly referred to as obtaining possession under the accelerated possession procedure.

You do not have to provide any other grounds for possession using this procedure.

What is the difference between fixed term and periodic?

a) A fixed-term tenancy

A fixed-term tenancy will be created for a specified length of time, for example, 12 months. However, if the tenants remain in the property after the fixed term has ended, and do not enter into a new fixed-term agreement with you, the tenancy will automatically become periodic (see below).

b) A periodic tenancy

A periodic tenancy rolls on a specific period such as month to month or quarter to quarter. This arrangement may have been specified at the start of the tenancy or may have naturally arisen by the expiry of a fixed-term tenancy.

First steps

The first step in the accelerated possession procedure is to correctly serve a section 21 Serving notice. However, there are certain criteria which must be fulfilled that you should be aware of before you begin this procedure. These are described below.

Criteria that must be fulfilled

Before you can begin a claim using the accelerated possession procedure, you must ensure the following:

1. You have a written assured shorthold tenancy agreement with the tenants and that stamp duty has been paid if the tenancy commenced before 1 December 2003.

2. You have served a notice on the tenants under section 48 of the Landlord and Tenant Act 1987 giving the tenants an address in England & Wales where they can contact you and where notices may be served. If the tenancy agreement includes such an address for the landlord, this requirement will be fulfilled.

3. If the first tenancy agreement with the tenants is dated between 15 January 1989 and 28 February 1997, you need to check that a notice was served on the tenants in accordance with section 20 of the Housing Act 1988 (a 'section 20 notice'). This notice must have been served on the tenants before the first tenancy commenced stating that it is an assured shorthold tenancy agreement.

4. A licence has been obtained, or applied for, if the property is a House in multiple occupation (HMOs) or is located in an area designated for licensing by the local authority.

5. Any deposit received after 6 April 2007 has been registered with a Government-approved Tenancy deposits scheme. If a periodic tenancy follows on from a fixed-term tenancy, the periodic tenancy will be a new tenancy. If the periodic tenancy starts after 6 April 2007 the deposit must be registered within 30 days of the start of the periodic tenancy. If the deposit was registered at the start of the fixed-term tenancy, it must be re-registered at the start of the periodic tenancy. You must give the tenants the prescribed information about the deposit scheme.

6. If the first tenancy agreement was made on or after 28 February 1997, none of the tenants are employed in agriculture, whether full time or under a permit; otherwise the 'agricultural worker condition' defined in schedule 3 of the Housing Act 1988 may apply and legal advice should be taken before you proceed.

If any of the above requirements have not been met then a claim for possession under the accelerated procedure is unlikely to succeed. You are advised to seek legal advice if this is the case.

If the above criteria are fulfilled

Provided you meet the conditions listed above, you can serve a notice under section 21 of the Housing Act 1988. This allows you to use the accelerated possession procedure. You can read more about this in our section 'Serving notice'.

If you have already served a section 21 notice, and the tenants have not left the property on the expiry of this notice, you may apply to the county court for an order requiring the tenants to vacate the property (Taking it to court).

If the tenants are in arrears of rent

If you meet the conditions required to use the accelerated possession procedure, and your tenants are in arrears of rent, we generally recommend that you use the accelerated possession procedure. This way, you are able to get the tenants out as quickly as possible and get new tenants in who will start paying rent.

However, please note that when you use the accelerated possession procedure, the court will not order the tenants to pay any rent arrears to you. You must instead apply to the county court for a court order against the tenants requiring them to pay the outstanding rent to you.

If you do not meet the conditions listed above, and the tenants are in arrears of rent, you are advised to read our section below on applying on the ground of rent arrears for more information.

Initial steps - rent arrears

If your tenant is in arrears of rent, it is important to deal with the matter promptly. Taking immediate action will hopefully stop the situation escalating any further.

Sending an initial letter to the tenant

The first step you should take is to send your tenant a letter pointing out that he/she is in arrears of rent and requesting that these arrears be paid. We recommend that all communication you have with your tenants, including demands for payment, should be in writing. This is for your own protection in the event you have to take the tenant to court.

In many cases, the tenant will pay the rent following your requests for payment. However, it is important that you start keeping detailed records in case the tenant does not pay.

Keeping records

Delivery of the initial letter

You should record the date when the letter was sent to the tenant, who the letter was given to and how it was sent (e.g. by hand, first class post). You should make a note of what is called the 'deemed date of delivery'. This term refers to the date which the court will say that the letter has been served on the tenant, which is not the necessarily the same day that you wrote/sent the letter and is determined by the method you used to send the letter. Below you will find a table outlining the different dates of service based on how you deliver the letter. We recommend that, whenever possible, you give the letter to your tenant by hand and get them to sign a copy of the letter to confirm that you have given it to them.

Method of serviceDate of deemed delivery

Personally serving the document by handing it to the tenant

The day of personal service

Leaving the document at the property (assuming it is the last known place of abode of the tenant)

The day after it was delivered to or left at the permitted address

Registered delivery - first class (assuming it is posted to the last known place of abode of the tenant)

The second day after it was posted (so long as it is not returned)

Special delivery - guaranteed next day (assuming it is posted to the last known place of abode of the tenant)

The next day after it was posted or date of delivery advised by the Post Office (so long as it is not returned)

First class post or an alternative service which provides for delivery on the next working day

The second day after it was posted

Second class post

The third working day after it was posted

Conversations with the tenants

Although you should inform your tenant of the rent arrears in writing, you may also have spoken to the tenant about the arrears. If you have, then as soon as possible after having the conversation you should make a record of it and any other conversations you have had with the tenant as well as the outcome. Your record should include the time, date and location, as well as the name of anyone involved in the conversation and a summary of what was said and/or agreed. This information may prove valuable in case you have to take your tenant to court.

Rent arrears and financial hardship

You should start to keep a record of the rent payments due and received from the tenants, including a running balance of any arrears.

If the arrears are causing you any financial hardship then you should also retain any records or documents that you have to prove this, such as letters from your mortgage provider regarding arrears of mortgage payments, threats to repossess etc.

Giving assistance in paying rent

In your letter to the tenant informing him/her of the rent arrears, you may want to offer assistance in making their payments by allowing him/her to repay the arrears in weekly or monthly instalments. If your tenant has fallen into hard times, e.g. made redundant or recently divorced, making such an arrangement may help them pay the rent and avoid the problem escalating. If you do have to take the matter to court, showing that you have offered assistance in such a way may also help your case in court.

If the tenant does not pay

If the rent arrears continue to accrue, or if the tenants fail to pay the rent arrears after you have sent at least one letter demanding that payment be made, then you should serve a notice requiring possession of the property in accordance with section 8 of the Housing Act 1988 (Serving notice). This notice must be served on your tenants before you can apply to the court for an order evicting them.

Under no circumstances should you attempt to evict the tenants yourself without a court order, for example, by changing the locks. Doing so is a criminal offence and you may be fined and/or sent to prison.