Accelerated posession order

[TraceyMR]

Hi

I was on here a while ago having problems with a tenant, since then we have served him section 21 - 2 months notice which expires on 31/1, up until today he had led us to believe he would be moved on time, however this afternoon I got a text telling me that he could not move out until the end of feb and if I didn't like it then I should go to court.

Well that is what I intend to do! on wednesday I will be starting the Accelerated possesion proceeding I am currently reading up about this and have downloaded the forms that I need.

I wondered if anyone could advise me how long I can expect this to take once the forms and payment have gone to the court (which I will do wednesday morning) as I cannot seem to find a time stated anywhere.

Any advise would be much appreciated.

Thanks

Tracey R

[Worldlife]

Just send the tenant a letter confirming receipt of the text message stating he will move out at the end of February. If you still have the message saved quote it exactly.

Let him know that you are applying for a Possession Order but there will be no need to proceed to a formal hearing if he complies with his promise.

The notes for the Defendant on the N5b Claim Form state:-

If you think there are reasons why the court should not make a possession order, you should consider getting advice froma solicitor or an advice agency immediately. If you dispute the claim, fill in the defence form and return it to the court office within 14 days of receiving the claim form.

If the court makes a possession order without a hearing, you will be entitled to apply, within 14 days of receiving the order, for it to be reconsidered. The application would have to show some good legal reason for varying or revoking the order.

Normally, if the court makes a possession order, it will tell you to leave the premises within 14 days. The judge can allow up to 42 days but only if satisfied that leaving within 14 days would cause you hardship which is exceptional (that is, worse than would usually be suffered by someone having to leave within 14 days)

That's the theory ................

We had all the documentation prepared but were fortunate that on the day our tenant on the day complied with our S21 notice that came in force at the expiration of a six month tenancy period.

We were quite worried by Paragraphs 5(c) and 5(d)of the application form

5. c) [bOn the ................. 19..... (before the tenancy began) a notice in writing, stating that the tenancy was to be an assured shorthold tenancy, was served on the defendant(s). It was served by:


5. b)Attached to this claim form is a copy of that notice marked 'B' [and proof of service marked 'B1'].

This is known as a Section 48 Notice

I could not find a prescribed form to complete as a Section 48 notice. The information needed is something like this:-

[Insert property address in full]
NOTICE OF PROPOSED ASSURED SHORTHOLD TENANCY

Date:- …………………….

To the proposed Tenant:- …[insert address of property]………………………….

……………………………………………………………………………………………………..

From the Landlord:- …[insert full name and address].

LEGAL REQUIREMENTS OF THIS NOTICE

1. Under Section 48 of the Landlord and Tenant Act 1987 I notify you that the Landlord’s address given above is the address at which notices (including notices in proceedings) can be served on the landlord. (The landlord can also be contacted by Email [insert address] or telephone [insert telephone number])

2. The tenancy agreement that you will sign is intended to create an ASSURED SHORTHOLD TENANCY as defined in the Housing Act 1988, as amended by the Housing Act 1966, and the provisions for the recovery of possession by the Landlord in that Act apply accordingly. The tenant understands that the Landlord will be entitled to recover possession of the Property at the end of the Term. As such it will be a legal document and should not be signed without adequate knowledge or advice concerning the law of landlord and tenant.

3. The agreement will set out all relevant dates, the name of the tenant, address of the flat, term of tenancy, the monthly rental paid, and the amount of the deposit.

4. The terms of the tenancy, that are standard terms, will be set out in the agreement

Signature of landlord

The good news is.............

I'm trying to find the thread discussing someone living in France with a UK property where it was established that S48 requirement did not apply to an AST in England and Wales that contained the above information.

Hope you have served a section 48 notice and if not how does one respond to that question if relying on that content being in the AST?

Over to the gurus............

EDIT THE SECTION 48 NOTICE REQUIRED BY PARAGRAPH 5 DOES NOT APPLY TO AST's CREATED AFTER 28TH FEBRUARY 1997 - THEY ARE COVERED BY PARAGRAPH 4

[Worldlife]

See discussion of Section 48 Notices on French Letters (or Question Time 5)

[TraceyMR]

I am even more confued now! I have not heard of section 48 - I thought the process was to serve the section 21 then if they did not move go to the court for the Accelerated posession - which was meant to be quick!.

We did have grounds to go down the section 8 route but decided this would probably take the same amount of time plus the tenant agreed to go in January.

Really I would like him to leave before the end of Feb and do not want to agree to his request to stay, I want him to beleive that I will do everything in my power to get him out. I don't care anymore how much it costs!!

I was hoping the Accelerated posession would take less than a month - more fool me to think that anything could be that simple!!

This guy owes me £2500 rent has paid no bills for nearly two years (just found out when I phoned to tell them he was 'probably' leaving) including council tax. had always paid the rent though until last september. He is driving me mad!!

Tracey R

[Worldlife]

Tracey........You cannot make a claim for unpaid Rent through the Accelerated Possession procedure and you will have to make a separate County Court claim for the money you are owed.

Don't worry about the bills - hopefully the contract to supply gas, electricity, water and Council Tax are in the tenant's name. You are only liable for those services where you have the contract to pay.

re Section 48. It's difficult but should not be confusing.

Paragraph 5 of your Claim Form N5B(Accelerated Procedure) quoted above is quite worrying -it asks you to confirm you served a notice before the tenancy began stating that the tenancy is to be an AST.

The view expressed on the linked thread was that this was not necessary for an AST in England and Wales if that AST contained the relevant information. I'd suggest a rider also that the tenant must have had that information by the AST "before the tenancy began"

The question is what to write in your ansewr Qu 5 show that you have served the relevant notice or to cover the failure to serve a separate notice.

Hopefully that will be answered by our gurus.

[caroline7758]

I'm watching this thread with interest as my tenants' S.21 also runs out on 31st Jan but they are unlikely to move out without a court order because they are going for council housing. If my AST agreement was dated before the start of the tenancy, does that count as a S.48? Also, if the tenant does leave before the case is heard, are the court costs still payable?

[TraceyMR]

I think reading the tenancy agreement that the relevant wording for the section 48 is included in the tenancy agreement. He signed the agreement on the 22nd Feb and the tenancy started on the 26/2 hopefully this will count.

Not wanting to go off the original subject but does anyone know what will happen if that is not included?

Im beginning to think that he will be able to stay there forever rent free at this rate!!

Tracey R

[Energise]

"We were quite worried by Paragraphs 5(c) and 5(d)of the application form"

For this purpose the Tenancy Agreement itself is the S.48 (provided the relevant info is in the agreement).

[attilathelandlord]

Don't be fooled by the name Accelerated Possession.

All it means is that the case will be heard by the Judge in Chambers without a hearing.

This means you have to supply the relevant paperwork as you won't be there while the Judge is considering the case.

This is for recovery of possession of the property only, you have to start a separate action for recovery of rent, which I would do once the tenant has moved out.


Obviously the Judge is a busy man/woman and besides the fact that once you serve papers at court, they must then be served by them on the tenant, an appointment has to be made by the court for the Judge. This may be one or two months depending on his timetable.

If you look at form N5B you are asked to fill in EITHER section 4 OR section 5. If your tenant has been in residence only since 28th Feb 1997 then you only answer Section 4.

As long as your AST contained your name and address (ie where the Tenant can serve notices to) then you have effectively served a Section 48.

The chances are that your tenant will be long gone before you get to court. However, I would commence action anyway, it always sharpens the mind.

I assume you had correctly served S21?

[Worldlife]

Thanks Energise and Attila - you have made it absolutely clear that paragraph 5 does not apply to AST tenancies made on or after 28th February 1997 and therefore needs some lines through it!!!!.

Note of this information added as an edit footnote to my post number 2 on this thread.

[attilathelandlord]

Sorry just adjusted my answer to read you only fill in Section 4!

[Worldlife]

No need to apologise... thanks for your clarification

It was a very tiny or

Maybe the form needs better design input to avoid misleading citizens who are not legal beavers and who buy spectacles at a discount.