Home About Blog Guest Article: Residential Possession with Ellie Clements of Jacksons Law
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Guest writer, Ellie Clements of Jacksons Law, takes a look at the common downfalls of Landlords during Residential Possession.

In light of the uncertainty from the UK’s Government, and the “cost of living crisis” that the country is bracing for and starting to feel the impact of, many residential landlords (stretching from landlords of large estates to “accidental” landlords) are planning on making the most of the still buoyant property market to see returns on investments to protect them and their family as we move into a potential recession. With that, we will see an increase in instructions surrounding the service of notices and Court proceedings to recover possession. This will also unfortunately highlight some shortcomings in the landlord’s management of the tenancies, resulting in difficulties when it comes to achieving vacant possession, for the purposes of a sale. In order for the landlord to recover possession where a tenant is not in breach, the landlord must ensure that the Section 21 route is available to them.

This article is your sign to regulate the position and we briefly detail the procedure and some common downfalls:

Section 21 procedure

Whilst there is a separate procedure for a tenant who is in breach of the tenancy, or may be at fault for another prescribed reason, the most common scenario in the coming months and years is likely to be a good tenant being moved on in order that the landlord can capitalise on their assets.

The procedure to recover possession in a “no fault” situation is usually a speedy and inexpensive one, subject only to the landlord having all of their “ducks in a row” prior to instigating the proceedings. 
We outline some common pitfalls…

“Gentleman’s Agreement” Tenancies

Too often we are seeing properties being occupied with no written terms in place. Whilst it is understandable that it is often not foreseen that things can go wrong, the consequences when the unexpected does happen can be expensive. 
Unregulated occupations create uncertainty when establishing the correct route by which possession would be recovered, leaving the landlord themselves open to unnecessary risk, cost and delays.

Drafting and formalising a tenancy agreement is a quick and relatively inexpensive way to save time and cost later down the line, subject to compliance with several other obligations, set out below.

Tenancy Deposits

The Tenant Fees Act 2019, which come into force on 1 June 2019 though had a transitional period to 1 June 2022, set a limit on most residential tenancy deposits of the equivalent of 5 weeks’ rent (for tenancies with an annual rent of less than £50,000), or 6 weeks’ rent for rent is £50,000 or higher. Any deposits held over and above this limit must be returned.

The Section 21 procedure cannot be used until this legislation has been properly complied with. 
Any tenancy deposit must also be protected in a Tenancy Deposit Scheme.

Within 30 days of receipt of the deposit, the landlord must:

  1. Comply with the initial requirements of the Tenancy Deposit Scheme (in line with their individual rules); and
  2. Give the tenant and any relevant person (meaning someone who pays the deposit on the tenant’s behalf) prescribed information about the Tenancy Deposit Scheme, the landlord and the tenancy itself (including, for example, the contact details for the TDS and the landlord’s details).


Not only can the Section 21 procedure not be used should the above not have been complied with, the tenant may also issue a claim against the landlord. Should this be the case, the Court must order the landlord to (a) return the deposit, (b) pay a penalty of 1 to 3 times the deposit, depending on the breach and (c) costs, which can go into the ££££s.

Service of Documentation

The landlord must also have served an EPC, a gas safety certificate and “How to Rent” booklet at the outset of the tenancy to use the Section 21 “no fault” procedure. Failure to do so again increases cost, risk and delay in having to rectify the position.


Jacksons Law Firm is now one of the longest-established law firms in the North East of England with offices in Newcastle, Teesside, and Sunderland.