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Can I use accelerated possession to recover rent arrears?

No unfortunately you can only use the accelerated possession procedure to claim vacant possession and your costs of making the accelerated possession application including Court Fees. You cannot include a claim for arrears of rent and if rent is also claimed this will nullify the entire accelerated possession proceedings.

A separate claim can be brought for a County Court Judgment in relation to rent arrears if required - if you would like more information in relation to such claims, please do not hesitate to contact us and we will be pleased to assist you further.

What is the statutory power for an accelerated possession order?

The Judge will make an accelerated possession order without requiring the attendance of the parties under Rule 55.17 of the Civil Procedure Rules 1998.

Who can make an accelerated possession claim?

Accelerated possession proceedings are most commonly brought by a landlord (or former landlord) or also by a mortgagee or licensor (or former licensor).

In which Court should the accelerated possession procedure start?

The accelerated possession application must be made in the County Court for the district in which the property in question is situated.

However, the claim may be started in the High Court if the claimant files with his claim form a certificate stating the reasons for bringing the claim in that court verified by a statement of truth.

Is an Accelerated Possession Order from the Court necessary?

Yes. It is illegal to forcibly evict tenants in England and Wales without an Accelerated Possession Order from the Court.

What evidence is necessary?

In order to grant the accelerated possession order, the Court will require sight of the following:

Can I prepare a Section 21 Notice myself?

Yes, you can but ideally you should instruct a solicitor to prepare this professionally. This is an important document. If not completed properly the Court will delay the accelerated possession application in order for the Section 21 Notice to be prepared properly and re-served.

The Court is very strict about the paperwork and great care must be taken to ensure that the Section 21 Notice has been properly drafted and served on the tenant(s). We can draft and serve this on your behalf.

How do I prove service of a Section 21 Notice?

Ideally personal service is best - by handing it to the tenant and an affidavit prepared to this effect. We instruct trusted process servers for a modest fee to personally serve this and also prepare an Affidavit of Service for Court use. This is particularly important if the tenant is likely to deny service of the Section 21 Notice.

If you have already served the Section 21 Notice by Royal Mail and do not have a document to prove service, we will need to complete a Certificate of Service on your behalf to present to the Court. However, if the tenant disputes service for whatever reason, then the Court may order the parties to attend a Court hearing to decide this issue and this can increase the costs.

Do I really need to wait 6 months before I can use the accelerated possession procedure?

Yes, because a tenant has a right to occupy the property for at least 6 months before the accelerated possession procedure can begin. When calculating the length of time a tenant has occupied the property, you can take into account any previous tenancy agreements so long as they were with the same tenant and for the same property.

If the tenant is occupying the property for a fixed term then you cannot start possession proceedings until at least six months and any fixed term of the tenancy agreement has come to an end, or the tenancy contains a break clause, allowing you to bring the tenancy to an end earlier.

What is an Assured Shorthold Tenancy Agreement?

All tenants in occupation must have a written Assured Shorthold Tenancy Agreement ("AST") in order for you to use the accelerated possession procedure.

Most tenancies that began after 28 February 1997 are ASTs. By way of guidance, if the following apply, then the tenancy in question is NOT an AST:

How long does an Accelerated Possession Order remain in force?

An accelerated possession order remains in force for 6 years from the date on which possession is granted in the Order.

Will the Accelerated Possession Order still apply if I come to an arrangement with the Tenant to discharge rent arrears and the Tenant subsequently defaults on the arrangement?

Yes, if you are successful in getting an accelerated possession order it will still apply even if you come to an arrangement for rent arrears and do not enforce it straight away. However, you must be very careful not to create a new tenancy by allowing the tenant to stay in occupation without having clarified in writing that the arrears arrangement does not create a new tenancy agreement, otherwise you may have to make a fresh application for accelerated possession if the tenant subsequently defaults again. For further information on how to put an accelerated possession order on 'ice' pending payment of rent arrears please contact us.

What is a House in Multiple Occupation and can I still use the accelerated possession procedure?

HMO relates to properties, which comprise 3 or more storeys (including habitable attics or basements) and are rented to 5 or more individuals who include 2 or more families (including single persons and cohabiting couples (whether or not of the opposite sex).

There are strict requirements for landlords of HMOs, including the need for licensing. If you think your property may need licensing or for advice, you should contact your local authority. Without a licence for an HMO, you cannot use the accelerated possession procedure.

What happens if the tenant disputes an accelerated possession application?

As long as the paperwork is in order, there is no defence available to the tenant and the Accelerated Possession Order will be made requiring the tenant vacate the property within (usually) 14 days.

Can the tenant delay his eviction?

The tenant can apply to the Court to postpone possession on the grounds of 'exceptional hardship' following the grant of an accelerated possession order. If this is accepted, the judge could allow the tenant up to 6 weeks to vacate the property instead of the usual 14 days.

You can choose to attend a court hearing in the event that such an application is made by the tenant. At the hearing you or your representative may raise objections to the tenant's application. However, if you choose to attend a court hearing then the court will not make an accelerated possession order against the tenant until the hearing has concluded. There could be a delay in obtaining a court hearing date as the courts are generally very busy.

Can you attend a Court hearing on my behalf?

Of course - we have a wealth of experience in attending such hearings and are confident to do so on your behalf. However our intention is to do everything possible to ensure this is dealt with on paper as quickly as possible and at the least expense to you.

Silverman Sherliker LLP Solicitors
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