Peter Jolly examines some reasons why residential property landlords experience delay in obtaining an order for possession

An assured shorthold requires at least two months' written notice under section 21 of the Housing Act 1988. If served on or before the end of the contractual term, section 21(1)(b) applies and no form of notice is specified.


However, if the contractual term has expired, section 21(4) applies. The notice must demand possession after a date at the end of the rental period of the statutory periodic tenancy that has now been created (see Fernandez v McDonald [2003] EWCA Civ 1219; 2003 4 All ER 1033). If the tenancy started on 1 September 2004 for six months, notice served on 15 March 2005 must expire on 31 May 2005. The safest course may be to say '...31 May 2005, but if that would cause this notice to be ineffective then the date next thereafter on which a period of your tenancy expires'. Even that fails to protect against issue before the notice has, as a matter of law, expired (see Lower Street Properties v Jones (1996) 28 HLR 877).


The (paper) procedure under rule 55.11-19 of the Civil Procedure Rules 1998 (CPR) must not be used if claiming rent arrears. It requires strict compliance with the conditions set out in rules 55.12 and 13. Delete all inapplicable alternatives in the prescribed form N5B, and attach full copies of the tenancy agreement and notice. Failure to do so will at best result in a hearing being directed. Assuming the court is satisfied the ground is proved, there must be a 14-day possession order, only extendable up to 42 days if exceptional hardship is proven (see section 89 (1) of the Housing Act 1980).



Assured shortholds, can, like other assured tenancies and secure tenancies, also be terminated for non-payment of rent. The relevant statutory provisions are the Housing Acts 1985 and 1988. The statutory notice must afford at least two weeks for compliance (section 83 of the 1985 Act and section 8 of the 1988 Act). Claims on the mandatory ground 8 (for assured tenancies) of two months/eight weeks' arrears at date of notice and date of hearing can only succeed if evidence of the current situation is produced at the hearing itself. All evidence to be relied on should be in the particulars of claim, or served not less than two days before the hearing (see CPR rule 55.8 (5)), but can be updated at the hearing.


If discretionary grounds are used, (grounds 1 for secure tenancies and 10 and 11 for assured tenancies), the court must additionally be satisfied it is reasonable to make an order. Laimond Properties Limited v Raeuchle ([2000] Lawtel, 24 Jan), under the Rent Act 1977, offers important guidance. Vice-Chancellor Sir Richard Scott said '...the matters proposed to be relied on by the landlord in support of the contention that it would be reasonable to make an order for possession... must be pleaded by the landlord. The tenant must know the case that he or she has to meet'.


Raeuchle was commenced before the CPR, but with the explicit provisions of part 55, its message is pertinent today. Thus the court will expect from the landlord evidence in the claim form, updated in the statement, of matters such as past proceedings, broken promises to pay arrears, and the tenant's own circumstances, if known.


If the mandatory ground 8 is not made out (perhaps the knowledgeable tenant reduces arrears on the day) the court may still make an outright or suspended possession order, or if it does not find it reasonable to make a possession order, perhaps adjourn the case on terms.


Disputes as to the arrears themselves will often result in a short adjournment, as the court in a busy possession list may not have the time to conduct a sufficient inquiry. Equally, the maker of a witness statement may not be present, not knowing of the challenge to his evidence, as the defendant does not have to file an acknowledgement or defence pre-hearing. The evidence itself may be unsatisfactory. The landlord uses a professional managing agent but fails to check with him if there is a last-minute payment. How up to date is the computer printout produced, and is it reliable? With some institutional landlords, significant periods can elapse between payment and it appearing on the records produced, even if they comply with part 32 of the CPR.


Unacknowledged recent payments may be crucial when mandatory grounds (ground 8, part 1 of schedule 2 of the Housing Act 1988) are used. An uncleared cheque payment can count as payment for the purposes of arrears calculations (see Day v Coltrane [2003] EWCA Civ 342, [2003] All ER (D) 210 (Mar)). Can the court adjourn to enable likely housing benefit arrears to reach the account? No, said the Court of Appeal in North British Housing Association v Matthews [2004] EWCA Civ 1736 (see [2005] Gazette, 27 January, 32).


Some other potential problem areas include:


  • Are outstanding service charges specifically reserved as rent? If not, ground 12 (for assured tenancies) must be used and the notice must say so.



  • Has the notice been effectively served on all the tenants? Standard form statements leaving alternatives as to manner of service may be rejected. 'Service' through the letterbox is only acceptable if there is a clause to that effect in the tenancy agreement (see Wandsworth LBC v Atwell [1995] EGCS 68).



  • Is the address of the property correct? Have you issued in the right court? (See CPR 55.3(1).)



  • If the landlord knows the tenant lives elsewhere, see part 6 of the CPR; the 'last known address' will not then be the demised premises. But the mere fact that a resident tenant does not actually receive the proceedings will not necessarily entitle him to have an order set aside (see Akram v Adam [2004] EWCA Civ 1601, [2005] 1 All ER 741).



  • Have 21 days elapsed since service of proceedings?



  • Is a full history of rent arrears in the particulars of claim? (See paragraph 5.2 of CPR practice direction 55.)



  • Is the landlord the claimant? A managing agent has no standing to bring proceedings (see Chesters v Abebrese (1997) Lawtel, 18 July).



  • Is the tenancy agreement produced? (See paragraph 7.3 of PD16).



  • Are the provisions of sections 47 and 48 of the Landlord and Tenant Act 1987 as to notices and demands met? Has a section 48 notice been served after a change of landlord?


    • Remember that these proceedings concern a tenant's right to a home.


    Any default or procedural irregularity may result in an adjournment unless, with the benefit of advice, the tenant agrees to waive it.


    District Judge Peter Jolly sits at Portsmouth Combined Court