Landlord's Claim for Possession - Example

[Ed999]

The following is an example of the types of claim a landlord can make under the Housing Act 1988, relating to an Assured Shorthold Tenancy (AST).

 

 

A. CLAIM FOR POSSESSION BASED ON A SECTION 21 NOTICE

 

PARTICULARS OF CLAIM for recovery of possession of premises let on an Assured Shorthold Tenancy:

 

1. The Claimant is the freehold owner and is entitled to possession of premises comprising a dwellinghouse situated at and known as (address) ("the premises").

 

2. The premises were let as a dwelling by the Claimant to the Defendant by a written agreement dated (date) for a fixed term of not less than six months, namely from (date) to (date), at a rent of £_______ per month (exclusive of water rates) payable monthly in advance/arrear.

 

3. The said tenancy does not contain any provision whereby it could be terminated by the Claimant at any time earlier than six months from the beginning of the tenancy, other than a provision for re-entry or forfeiture in the event of non-payment of rent or breach of any other obligation of the tenancy by the Defendant.

 

4. On (date) the aforesaid term certain determined by effluction of time and thereupon a statutory periodic tenancy arose under Section 5 of the 1988 Act.

 

5. On (date) the Plaintiff served on the Defendant a notice under Section 21 of the 1988 Act stating that the Plaintiff requires possession of the premises on (date), the latter date being:

(a) a date not less than two months after the notice was given, and

(b) the last day of a period of the said tenancy, and

© a date not earlier than the earliest date on which said tenancy could, apart from Section 5(1) of the 1988 Act, have been terminated by a notice to quit given by the Plaintiff on the date the notice under Section 21 of the 1988 Act was given.

 

6. The said tenancy was an assured shorthold tenancy. The Defendant wrongfully remains in possession of the premises, and the Claimant is entitled to and claims possession of the premises by virtue of Section 21 of the 1988 Act.

 

AND the Claimant claims:

(1) Possession of the premises

(2) Costs

 

Date:

 

Signed: .......................

 

 

B. ALTERNATIVE CLAIM FOR POSSESSION, BASED ON ARREARS OF RENT OR BREACH OF A TERM OF THE TENANCY AGREEMENT (e.g. DISREPAIR)

 

If the Landlord alleges arrears of rent or breach of any other term of the tenancy -

 

(Repeats paragraphs 1 and 2 above)

 

3. The following are (inter alia) express terms of the said tenancy:

(1) (Details)

(2) (Details)

 

4. The Defendant is in breach of the terms of the said tenancy set out in paragraph 3 herein and in consequence the Claimant has suffered loss and damage.

 

Particulars of Breach:

(1) Non-payment of rent from (date) to (date) inclusive.

(or non-payment of mesne profits from (date) to date).

(2) (Details of any other breach of the terms of the tenancy)

 

Particulars of Loss and Damage:

(1) Rent Arrears of £____

(2) Mesne Profits of £____

 

5. On (date) the Claimant served on the Defendant a notice in the prescribed form pursuant to Section 8 of the 1988 Act informing the Defendant that the Claimant intends to commence proceedings for recovery of the premises not earlier than (date) [see Section 8(4) of the 1988 Act - below] and not later than 12 months from the date of service of the said notice and on one or more of the following grounds namely Ground __ and/or Ground __ in Schedule 2 of the 1988 Act, which provide that a landlord can recover possession of premises where:

[Here set out the Statutory Ground or Grounds in full - see below]

and the notice gave particulars of the said grounds.

 

6. The said tenancy was an assured shorthold tenancy. The Defendant wrongfully remains in possession of the premises, and the Claimant is entitled to and claims possession of the premises by virtue of the said Ground.

 

7. The Claimant is entitled to and claims interest pursuant to Section 69 of the County Courts Act 1984 at the rate of 15 percent per annum on all sums of money awarded to the Claimant for such period as the Court thinks fit.

 

AND the Claimant claims:

(1) Possession of the premises

(2) Rent arrears of £______ as at the date the notice requiring possession was served

(3) Mesne profits from the date the notice requiring possession was served until (date) being £__

(4) Mesne profits continuing from the last mentioned date until possession is delivered at £__ per month (£__ per day)

(5) Interest as pleaded

(6) Costs

 

 

SECTION 8(4) REFERRED TO ABOVE

 

Section 8(4) of the 1988 Act provides that the period of notice that must be given under Section 8 of the Act is not less than two months in the case of Grounds 1, 2, 5, 6, 7, 9 and 16 of Schedule 2 in the 1988 Act.

 

Section 8(3)(b) provides that in the case of all other Grounds (Grounds 3, 4, 8, 10, 11, 12, 13, 14 and 15) the period of notice must be not less than two weeks.

 

 

THE STATUTORY GROUNDS REFERRED TO ABOVE

 

GROUND 8:

 

Both at the date of the service of the notice under scetion 8 of this Act relating to the proceedings for possession and at the date of the hearing:

(a) if rent is payable weekly or fortnightly, at least thirteen weeks rent is unpaid;

(b) if rent is payable monthly, at least three months rent is unpaid;

© if rent is payable quarterly, at least one quarter's rent is more than three months in arrears; and

(d) if rent is payable yearly, at least three months rent is more than three months in arrears;

and for the purpose of this ground "rent" means rent lawfully due from the tenant.

 

 

GROUND 9:

 

Suitable alternative accomodation is available for the tenant or will be available for him when the order for possession takes effect.

 

[see Part III of Schedule 2 in the 1988 Act for details of what the Court will recognise as constituting suitable alternative accomodation.]

 

 

GROUND 10:

 

Some rent lawfully due from the tenant:

(a) is unpaid on the date which the proceedings for possession are begun; and

(b) except where subsection (1)(b) of Section 8 of the 1988 Act applies, was in arrears at the date of the service of the notice under that Section relating to those proceedings.

 

 

GROUND 11:

 

Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfuly due.

 

 

GROUND 12:

 

Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.

 

 

NOTES:

 

Only Grounds 1 to 8 are mandatory. The Claimant will only get a possession order on Grounds 9 to 16 if, in addition to proving the Ground relied on, the Court considers it reasonable to order possession (Section 7(4) of the 1988 Act).

 

There are also the following Grounds for possession in Schedule 2 of the 1988 Act: former owner-occupier requires the premises; mortgagee selling; holiday lets; letting to a minister of religion; landlord wants to demolish or reconstruct; death of tenant; commission of waste; nuisance to neighbours; ill treatment of furniture; or termination of employment under a service occupancy. See the Act for details of each (some require notice to be given to the tenant before the tenancy is granted).

 

 

THE EFFECT OF THE HOUSING ACT 1988 ON THE COMMON LAW

 

Until the fixed term ends the tenancy can't be terminated at Common Law, except by forfeiture for breach of covenant. (A fixed term tenancy can only be terminated by Effluction of time or by Surrender.)

 

On the date the fixed term ends a periodic assured shorthold tenancy arises under Section 20(4), unless the Landlord obtains a possession order that takes effect on that date.

 

Such a statutory periodic tenancy can't be terminated by giving Notice to Quit (Section 5(1)). It can only be terminated by giving notice under Section 21(4).

 

 

APPLYING FOR POSSESSION WHERE THE FIXED TERM HAS NOT EXPIRED

 

Section 7(6) of the 1988 Act provides that where the fixed term has not expired an application can only be made on Grounds 2, 8, 10, 11, 12, 13, 14 or 15 in Schedule 2 of the Act, and that the tenancy agreement must contain a provision for the fixed term to be ended by the Ground relied on.

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[Ed999]

USE THIS EXAMPLE WITH CAUTION!

 

It is intended for use ONLY by someone with extensive knowledge of tenancy law.

 

It is only an example, and not intended to be comprehensive. Many of the sample clauses featured will not apply in YOUR circumstances!

 

 

Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.