Why are Judges so picky about possession proceedings?

I have written two posts recently – on the top five mistakes made by landlords and on what happens when things go wrong with possession proceedings. But why are Judges so pernickety and fussy when looking at possession claims?

I was thinking about this when advising a landlord client recently. She had rented out a property on a rather informal basis and wondered whether just a letter would do or whether she needed to serve a notice.

I think she was rather shocked when I launched into my normal talk about the problems associated with tenancy deposit protection and the rules surrounding section 21 notices.

She had just vaguely thought “It’s my house, so I just need to tell the tenant to move and that should be it”.  But it’s not as simple as that.

It’s their home

Landlords have a tendency to view rented property as just ‘an investment’. Which, for them, is what it is.  However, it is important to realise that for your tenant, this is their home.

This is also how the Judge will see it. And if you are asking a Judge to make an eviction order – this is a very serious thing. If people are evicted from their homes, this can be life changing – in a very bad way

• They may not be able to find anywhere else to live and have to go on the street
• This will normally mean that they will be unable to hold down or find a job – which will reduce their chances of being able to find anywhere else to live
• If they have children they will normally be re-housed under the Local Authorities statutory duty, but if for any reason this is not possible, their children may be taken into care

No Judge is going to make an order for possession – which can have such serious consequences – lightly. They will expect, at the very least, landlords to have their paperwork in order and to have followed all the proper procedures.

Providing a service

Landlords are understandably angry when they find that they are expected to house non-paying tenants for free (effectively) while possession proceedings wind their way through the courts.

After all, they still have to pay their expenses on the property – such as the mortgage. They are also expected to keep the property in repair under their repairing covenants – even if the tenant is not paying rent.  But surely these non-paying tenants should be forced to move out quickly?

If you take the appropriate action they WILL be forced to move out eventually but this will take time.  This is the risk you take when renting out property. Nothing in life is entirely risk-free. Renting property is the same.

You need to be aware that as a landlord, you are not just ‘investing in property’, you are in the business of providing people with a home. Which could include families with children.  The service you are providing is a consumer service and is treated as such by the law (although, I agree – not the tax system – which is unfortunate).

You are always at risk of voids, tenants falling into arrears, expensive eviction claims and tenant damage to your property. This is the nature of the business.

However, there are things you can do to reduce the risk.

Reducing the risk

The best thing you can do to help yourself is to take enormous care when selecting a tenant. It makes my blood run cold when I hear of landlords accepting tenants without doing any checks at all. Having a good tenant is the single most important thing in renting property.  Ask any experienced landlord.

Another way to reduce risk is to ensure that you comply with all YOUR obligations. For example the most effective way to obtain possession is via section 21 – but the government is increasingly taking the view that the right to use this should be conditional upon landlords complying with all their obligations. This was the reason behind the legal changes which came in with the Deregulation Act in October 2015.

Note by the way that if you are renting out your own home, the problems surrounding section 21 can be avoided by serving a ‘ground one‘ notice on your tenant at the time you rent out your property.  This will allow you to recover possession as of right after service of a section 8 notice (and an application to the court).

Finally – make sure your paperwork is perfect. Then the Judge will have no option but to grant you your possession order, should you need to go to court and apply for one.

Conclusion

Landlords often feel that no-one understands them, or appreciates that they take the risk in providing accommodation, and feel that they don’t get sufficient support from the law when things go wrong.  Long delays in evicting tenants who are not paying rent is at the top of their list of complaints.

The answer is though that if you find this unacceptable – don’t rent property to tenants.  Invest your money in some other way.  Because to everyone else – the public, Judges and the government, you are in the business of providing homes to consumers and are therefore bound by the various laws that have been enacted to protect them.