Gas Access Kit

Bonus section - Notes on possession proceedings

Preliminary discussion of your options

Possession proceedings

Preliminary

This is an additional section to the Gas Access Kit which was added after the main site had gone live.  In this bonus section we look specifically at bringing a claim for possession using the tenants failure to allow access to do the gas safety check as your reason for asking for possession.

Introduction to possession claims

Bringing a claim for possession against your tenant is probably what most landlords will want to do, if they are faced with a tenant so unco-operative that they will not let you in to do the annual gas inspection.

If eviction under the section 21 procedure is open to you, this is probably your best course of action (as we suggested earlier in Part 3/6).  Note - full details on getting possession under section 21 are provided in the Landlord Law DIY Guide - see the link on your right. However what if section 21 is not open to you?  For example if you have a long fixed term or if the tenancy is not an AST?

If your tenancy is an assured tenancy then there is always the option of bringing a claim for possession based on breach of the terms of the tenancy agreement, ground 12 of Schedule 2 of the Housing Act 1988. However our view that this will not be an easy claim to bring.  Here are some of the main points to consider.

Points to consider:

The claim would not be based on a mandatory ground and the Judge will have a wide discretion as to whether he grants the order or not.

One outcome could be that he grants an order suspended suspended on terms that the tenant allow you in.  This would be helpful.

However with a discretionary ground for possession it is not really possible to predict what the Judge will do.  You could let yourself in for a long and expensive court claim, particularly if the tenants are able to get legal aid to defend. Injunctions tend to be granted more readily by the Judge as the tenant is clearly in breach, and the landlord is in the right of it.  Depriving the tenant of a home is something else and Judges are generally reluctant to do this unless there is no alternative.

If an injunction is obtained and the tenant fails to comply THEN a claim for possession is far more likely to succeed. However if you decide you want to follow the possession route using ground 12 without getting an injunction first here is what you need to do.

Check your tenancy agreement

There are two things you need to check:

1. There should be a clause in your tenancy agreement which provides for you to have access to the property to get the annual gas check done.  It is not fatal if the clause is not there but it will be better if it is.

2. If you are bringing proceedings during the fixed term of the tenancy agreement, it is essential that there is a clause which allows you to evict the tenant using ground 12 of Schedule 2 of the Housing Act 1988.

If your tenancy agreement is a purchased one or one of the Landlord Law tenancy agreements you should be all right.  However its best to check. This is not necessary if you are bringing the claim after the fixed term has ended, but then, if your tenancy is an AST, it will be better for you to use the s21 procedure rather than rely on ground 12.

What to do if you decide to issue these possession proceedings:

1. Serve a section 8 notice (see the draft in the next section) 2. Issue proceedings for possession 3. Attend the hearing and get your order 4. If the order is obtained, then enforce it as necessary. Please now go to the next part for guidance on the notice.