Possession and Eviction -
Frequently Asked Questions
Possession and Eviction -
Frequently Asked Questions
If you have received any letters from your Landlord, the Council or the Court threatening you with eviction or legal action, FREE Legal Advice may be available to you (subject to means test). Despite the Legal Aid cuts of April 2013, a number of Housing problems are still covered by Legal Aid. Losing your home is one of them.
Here at T.A.Law we can assist you at all stages of the Possession Procedure or Eviction process. Whether you have received a ‘Notice Seeking Possession’, ‘Claim form for Possession’, or ‘Notice of Eviction’ free advice and representation may be available to you, providing you satisfy the financial conditions of Legal Aid funding.
“My Landlord/The Council are trying to evict me”
This is a statement used commonly by our clients when an initial Notice seeking Possession is received. However, there are a number of defences which may be available to tenants to try to stop a potential eviction. Whether your landlord is alleging rent arrears or Anti-Social Behaviour, it is best to obtain legal advice whether you agree with the allegations against you or not.
A Notice Seeking Possession is the first step in the possession or eviction process. This notice must advise you of the Grounds your Landlord wishes to rely upon to try to evict you. The Grounds of possession will depend on what type of tenancy you have, and what your landlord is alleging. The most common types of Notice Seeking Possession however are a Section 8 notice or Section 21 notice.
It is important to note that despite having a Notice Seeking Possession, this does not mean you need to immediately move out of the property. In order for an eviction to be lawful, your landlord then must issue a claim in the County Court for a Possession Order, and obtain a warrant of possession.
“I have received a Claim form for Possession”
When your landlord issues a claim in the County Court for a Possession Order, you will receive a copy of this claim form from the Court. This will include with it a defence form for you to complete, usually within 14 days. If you are unsure how to complete the defence form, or in fact do not know if you have a defence to the possession proceedings, it is important you obtain Legal Advice.
The Court will then usually list a Possession hearing. However, if your landlord had initially issued you with a Section 21 notice, and is using the accelerated Possession Procedure in Court, there may not be a hearing. This is another reason why it is important you gain legal advice about any potential defences available to you in this eviction process.
“What happens at the Court Hearing?”
At the Court hearing, the Judge will establish on what Grounds your landlord is seeking possession, then ask about your defence. The Judge will then make a finding of fact on whether your landlord is entitled to possession of your home, which means whether your landlord is allowed to Evict you.
The Judge can make many different decisions at a hearing. He can adjourn proceedings for you to obtain legal representation, or to gain further evidence. He can also make an order against you. The Possession Order however does not necessarily mean you will be evicted. A Judge can for example order a ‘Suspended Possession Order’ which allows you to remain in the property as long as you comply with the terms of the order. This could for example be paying a certain amount towards your rent arrears, until your arrears have been cleared.
Even if the Court grants an order in your landlord’s favour, your landlord still needs to apply to the Court for a Warrant or ‘Notice of Eviction’ in order to evict you lawfully.
Legal Aid funding is available for you to have representation at court. We have a team of representatives at T.A.Law who can attend court with you, and advise you of any possible defence to put to the Court, to ensure you retain your home.
“I have received a bailiffs notice, what do I do?
A Warrant or Notice of Eviction is sometimes referred to as a bailiffs notice. This is due to the fact that your Landlord can instruct bailiffs to arrive at the property to evict you at the date and time shown on your Notice of Eviction.
Unfortunately, the Notice of Eviction is the final step in the Eviction process, which means you will need to move out of the property by the date and time given by the court. However, you can still make an application to the court before the end of the Warrant period to suspend or ‘stay’ the Warrant of Eviction. This could be perhaps on the basis that you can now pay an amount towards your rent arrears, and so you are asking the court not to evict you providing you keep up with your repayments.
There are many different reasons why we can request that the court suspends the Notice of Eviction. There may have been legal or procedural errors which can effectively stop the eviction, even if you have breached your Tenancy Agreement by for example having rent arrears or causing Anti Social behaviour. Thus, should you receive a Warrant of eviction, please call or attend our offices so that your case can be considered as soon as possible.
“ I haven’t done the Anti Social Behaviour alleged”
A Common cause of landlords trying to evict their tenants is if Anti Social Behaviour is alleged, or in fact has happened at the property. If you have caused a nuisance to your neighbours, this can be deemed a breach of your tenancy, and your landlord can choose to evict you because of this.
However, whilst Anti Social Behaviour is a breach of your tenancy, it may be that you would have a defence to the Possession Proceedings if, for example, it isn’t reasonable to evict you. Anti Social Behaviour can cover many different types of ‘nuisance’ behaviour, from a dog barking or other noise nuisance, to more serious behaviour such as verbal or physical altercations with neighbours. Before lodging possession proceedings however, the Local Authority or Social Landlords would usually have procedures in place to consider other avenues such as mediation or injunction proceedings before trying to evict you.
It is important to note that even if you admit that you, a family member or visitor to your household has engaged in Anti Social Behaviour, there may be a defence in the proceedings. As such, please call or book an appointment with us to discuss your case and the next possible steps.
“I have an application for an Injunction against me”
Your landlord may consider Injunction proceedings against you before starting any possession proceedings to try to stop the alleged Anti Social Behaviour before evicting you from your property.
An Injunction in the Housing sense is usually granted under Part 1 of the Anti Social Behaviour Crime and Policing Act 2004. These Injunctions are in scope for you to obtain Free Legal Advice under Legal Aid funding, again if you are financially eligible.
An Injunction is a court order to try to end alleged Anti Social behaviour. The terms of an Injunction could, for example, state you are forbidden from engaging in certain behaviour, or perhaps forbidden from going to a certain area, or could be an order forcing you to do something such as allow your landlord access to your property.
An Injunction is a remedy available in the Civil court, but in some cases you can still be arrested and even have a prison term for breaching the conditions of your injunction.
Legally, you can defend the application for an Injunction in the County court. Again, Legal Aid funding is available for representation at Court (subject to eligibility), so you do not need to go alone. An Injunction is usually dealt with quickly in the County Court. As such, it is important you contact us to discuss your defence as a matter of urgency.