Taking it to court

Contents

1. Using the accelerated procedure (section 21 notice) 1.1. Locating the correct court 1.2. How do I start court proceedings? 1.3. What happens after I issue court proceedings? 1.4. Potential outcomes of the claim 1.5. What happens if the tenants ignore the court order? 2. Using the rent arrears procedure (section 8 notice) 2.1. How do I start court proceedings? 2.2. What happens after I issue court proceedings? 2.3. What decision will the court make? 2.3.1. Mandatory grounds for possession 2.3.2. Discretionary grounds for possession 2.4. What happens if the tenant ignores the court order?

If any of the tenants fail to leave the property upon the expiry of the section 21 notice then you may apply to the county court in the area in which the property is situated for a possession order.

For more information see our 'Serving notice' section.

You can locate the county courts in your area by using the Court Finder and should be able to contact them between 10am and 4pm Monday to Friday.

You will need to send the following to the court:

1. Form N5B (Claim form for possession of property- accelerated procedure).

2. The tenancy agreement. If there has been more than one tenancy agreement with the same tenants at the same property then copies of the first tenancy agreement, as well as the latest tenancy agreement should be sent. The tenancy agreement may need stamp duty to be paid on it before being sent to the court.

3. A copy of the section 21 notice and evidence of its service upon the tenants (such as a recorded delivery slip). If you do not have any documentary evidence of service, you may need to complete a certificate of service (Form N215) or a witness statement providing evidence of how the section 21 notice was served.

4. Where applicable, a copy of the section 20 notice and evidence of its service on the tenants such as a recorded delivery slip. If you do not have any documentary evidence of service, you may need to complete a certificate of service (Form N215) or a witness statement providing evidence of how the section 21 notice was served. See our 'Initial steps to take' section for more information on section 20 notices.

5. If the property is a house in multiple occupation or is located in an area designated for licensing by the local authority, a copy of the licence or, if this has not yet obtained, evidence that one has been applied for.

6. If a deposit was received after 6 April 2007 evidence that it has been placed into a Government-approved tenancy deposit scheme.

7. A cheque for the court fee. Details of the court fee can be obtained by searching for leaflet EX50 on the The Court Service website. The cheque should be made payable to 'HMCTS'.

1. On receiving your claim the court will:

i. Issue the claim

ii. Give it a claim number (the court's reference number)

iii. Send a copy of the claim to the tenants

iv. Write to you confirming that this has been done and inform you of the date of service on the tenants

2. The tenants will have 14 days from the date your claim is served on them by the court to send their defence (if any) to the court stating why they oppose the claim or seeking a postponement of possession on grounds of 'exceptional hardship'. The court will provide you with a copy of the defence.

3. If the tenants fail to file a defence in the time provided then you will have three months to make a written request to the court to grant a possession order against the tenants for failing to raise a defence to your claim. The court will provide you with a simple form to complete and return to it for this purpose. If this request is not made by this time, the claim will be stayed (put on hold). If the tenants file a defence at court after 14 days has expired, but before you make a written request to the court to grant a possession order, the defence will be accepted by the court.

4. On receiving a defence or a request for possession of the property from the landlord, the claim will then be referred to a judge.

The judge may grant possession of the property without the need to attend a court hearing, unless he/she is not satisfied that the claim form was served on the tenants or that you have properly established a right to possession. In such circumstances, he/she may set a date to attend a court hearing or even dismiss your claim outright.

If the tenants apply to postpone possession on the grounds of 'exceptional hardship', and this is accepted by the judge, then he/she may give the tenants up to six weeks to vacate the property instead of the usual 14 days. However, you can choose to attend a hearing in the event that such an application is made by the tenants. At the hearing, you or your representative may raise objections to the tenants' application.

You must not evict the tenants yourself.

If you have obtained an absolute possession order, and the tenants fail to leave after the date specified in the order, you must apply to the court for a warrant for possession using court form N325. This should be sent to the court together with the court fee. The court will then arrange for bailiffs to evict the tenants on your behalf.

Please note that if the tenant refuses to leave after the date in the court possession order, and you ask him or her to pay rent, there is a danger that the court could rule that a new tenancy has arisen. However, the tenant is liable to pay you damages for continued occupation of the property (known as mesne profits). You should seek legal advice in these circumstances.

If your tenants fail to pay the outstanding rent in the time stipulated in the section 8 notice and if any of the tenants have not moved out of the property at the end of this period either, then you may apply to the court for an order evicting the tenants. If you have not yet served a section 8 notice on the tenants, you are advised to read our article on this topic before proceeding.

To start court proceedings, you should apply to the county court in the same area where the property is situated. You can locate the county courts in your area by using the Court Service Address Finder and should be able to contact them between 10am and 4pm Monday to Friday.

You will need to send the following forms to the court:

1. Form N5 (Claim form)

2. Form N119 (Particulars of claim)

3. A schedule of rent arrears setting out the dates and amounts of all payments due and made under the tenancy agreement and a running total of arrears for a period of two years preceding the date on which the claim is issued at court. If the arrears began more or less than two years before the issue date then the schedule should begin from the date the arrears first began.

4. A witness statement confirming the amount of the arrears in the event that the arrears have accumulated over a period of more than two years.

5. A cheque for the court fee. Details of the court fee can be obtained by searching for leaflet EX50 on the Court Service website. The cheque should be made payable to 'HMCTS'.

On receiving your claim, the court will:

i. Issue the claim

ii. Give it a claim number (the court's reference number)

iii. Send a copy of the claim to the tenant

iv. Set a date for a court hearing and advise you and the tenant of it

The tenant will have 14 days from the date your claim is served on them by the court to send their defence (if any) to the court. The court will provide you a copy of the defence.

You, or your legal representative, must attend a court hearing to present your case. The tenants must also be present at this hearing. The outcome of the court hearing will vary depending on the circumstances at the time of the court hearing.

What decision the court will make will depend largely on whether you are relying on mandatory or discretionary grounds for possession.

To qualify for a mandatory possession order, both at the date of the service of the section 8 notice and at the date of the court hearing, one of the following must apply to your circumstances:

• If rent is payable weekly or fortnightly, at least eight weeks' rent is unpaid
• If rent is payable monthly, at least two months' rent is unpaid
• If rent is payable quarterly, at least one quarter's rent is more than three months in arrears
• If rent is payable yearly, at least three months' rent is more than three months in arrears

If you do not satisfy the above criteria by the court hearing date then you must rely on the discretionary grounds for possession.

If relying on mandatory grounds for possession, the court must make an absolute order for possession. This means that the tenants must leave the property within a fixed period of time (usually 14 days).

You can rely upon discretionary grounds for possession if one of the following criteria is fulfilled:

• Rent has not been paid both by the time the possession proceedings have started and when the notice under section 8 of the Housing Act 1988 was served. If the tenant has been offering you rent, and you have refused to take it, the tenant will have a defence to your claim for possession, but he/she must still pay the amount owed.
• Even if there are no current rent arrears, the tenant has persistently failed to pay rent on time.

When relying on discretionary grounds to obtain a possession order, you will need to satisfy the court that the criteria for the grounds have been met and that it is reasonable in the circumstances for the court to make an order for possession. This can be difficult to persuade the court. Therefore, there is no guarantee that you will obtain possession of your property when relying on the discretionary grounds for possession.

The court can take into account a large range of factors including:

• The frequency of the late payments. If just one or two payments have been delayed over a long period of time then the court may not regard this to be 'persistent'. However, if the rent is habitually paid late then the court may take a different view.
• The length of the delay in payments (a delay in payment over a period of years is more likely to result in an order for possession)
• If it has been caused by factors outside the tenant's control (such as delays caused by housing benefit authorities)
• Whether the tenant can provide a good explanation for the delay or non-payment of rent (such as showing it is exceptional, or if there has been a change in their personal circumstances, such as being made redundant)
• What steps you have taken to secure payment of the arrears
• If the delay has caused you any inconvenience and expense

If you are relying upon discretionary grounds then the court may make an absolute order for possession; however, they may also decide to allow the tenant to remain in the property, provided that they meet certain conditions, such as paying the rent by instalments. This is called a suspended possession order and you cannot evict the tenant(s) unless they breach the terms of the court order.

You must not evict the tenant yourself under any circumstances. You should apply to the court for a warrant for possession for court bailiffs to evict the tenants on your behalf.