How to handle the eviction process

How to handle the eviction process

Evicting tenants is often a fraught process for landlords, but the costs can be especially high if mistakes are made. Keeping up with changes in legislation has never been more critical, as failure to comply can impact a landlord’s ability to evict a tenant when things go wrong – it is a criminal offence for a landlord to evict a tenant without the correct legal procedures in place.

Whatever the reason for eviction – whether the tenancy isn’t working out, your tenants are behind with their rent or your circumstances as a landlord have changed and you need the property back as your main home – our guide to eviction covers the legal requirements of eviction as well as providing some top tips to ensure that the process is as smooth as possible.

The law – what do you need to know?

In the vast majority of cases, the contract between a landlord and tenant takes the form of a tenancy agreement. The most common tenancy agreements are for Assured Shorthold Tenancies (AST). ASTs can be terminated principally by reliance on fair grounds for eviction laid out in a Section 21 notice or a Section 8 notice, either mandatory or discretionary, of the Housing Act 1988.

Both Section 21 and Section 8 notices are used to serve notice on a tenant, however, they are very different, and it is vitally important that the correct notice is served to avoid delay and expense.

As a landlord, you therefore need to be familiar with Section 21 and Section 8, as well as tenancy agreements and how you end a tenancy agreement.

Tenancy agreements and how to end them

Having a written tenancy agreement in place ensures all rights and responsibilities are clearly agreed beyond those prescribed by law and that any disputes can be resolved more easily. You will also need to show that an AST was in place if you wish to use a Section 21 notice. An AST can be:

  • Fixed term: the agreement lasts for a fixed length of time
  • Periodic: the agreement rolls on indefinitely with rent paid at fixed intervals throughout

Whether your tenant is on a fixed term or periodic AST is important when it comes to the process of eviction:

If a fixed term AST is coming to an end, a landlord can evict fairly easily and there is no need to give a reason.

However …

  • A landlord cannot just let the tenancy ‘run out’: if he or she does nothing, the tenant is legally allowed to stay on under a statutory periodic tenancy
  • The landlord must provide two months’ written notice to end the tenancy. This is the Section 21 notice
  • If the landlord has complied with these rules and the tenant refuses to leave, the landlord may start the process of eviction. A court order is required to forcibly remove a tenant

If the landlord wishes to end a periodic AST …

  • If it is a contractual periodic AST, the landlord should follow the stipulations which should be laid out in the contract. If in any doubt, take legal advice before proceeding
  • If it is a statutory periodic AST, the landlord must give at least two months’ written notice, which expires on the last day of a rental payment period. For example, if a rent period runs from 2nd August to 1st September, the end of tenancy date stated in the notice must be 1st September

If a landlord wishes to end a fixed term AST before the end of the term …

  • If the tenancy agreement has a provision for this, the landlord should be able to seek possession
  • Alternatively, they could activate the break clause in the agreement, provided there is one, and then use a Section 21 notice (landlords cannot otherwise use the Section 21 notice if trying to end a tenancy during a fixed term)
  • If a landlord can show they have grounds for possession (such as rent arrears), they can seek possession using a Section 8 notice

The basics – what is the difference between a Section 21 and a Section 8 notice?

There is, not surprisingly, a lot of confusion around the difference between a Section 21 and a Section 8 notice. Basically, a Section 8 should be served in circumstances when a tenant is in breach of contract (i.e. the landlord has grounds for possession) or has done something wrong such as fallen into rent arrears. So long as the landlord has a legitimate grounds for possession, he/she can serve a Section 8 notice at any point during a tenancy.

A Section 21, on the other hand, should be served to end an AST when the landlord simply wants the tenant to vacate the property at the end of the tenancy or afterwards during a periodic tenancy.

Using a Section 21 notice – when the landlord just wants the property back

Sometimes, a landlord may wish to seek possession of their property for personal reasons, such as selling the property, moving back into it or renovating it, when the tenancy has ended. When evicting a tenant under a ‘no fault’ Section 21 procedure, a landlord does not have to give a reason.

Quite often, landlords are forced to issue Section 21 notices so that tenants can be re-housed by their local council.

In ‘no fault’ instances, a Section 21 notice (notice to quit) must be served two months before the end of the tenancy agreement.

However, Section 21 can only be given to tenants on agreements with a fixed term that has expired. If the agreement has rolled onto a periodic tenancy – i.e. the tenants have remained in the property beyond the current tenancy agreement – notice can be served at any time which gives two months’ notice, but must expire on the last day of the rental period.

Where a landlord’s claim is for possession only (Section 21) he/she can use the courts’ accelerated procedure. The court serves a copy of the claim form on the tenant who then has 14 days to reply to the claim. Tenants can file a defence, but under Section 21 they are very limited as to what constitutes a defence. Some tenants seek an extension of time in which they have to vacate. The maximum extension a Judge can grant is 42 days from the date of making the order. If no defence is filed, a landlord can apply to the court for an Order for Possession. It can take approximately eight weeks to receive the Order for Possession, depending on the workload of the court. Claims under accelerated Section 21 do not enable a landlord to claim for arrears of rent.

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The key challenges landlords face when serving a Section 21 are:

Tenant Deposit Protection – A landlord must protect a tenant’s deposit in one of the three government backed deposit protection schemes, such as mydeposits, within 30 days and inform the tenant which scheme it has been protected in. If you do not have the deposit in order prior to serving a Section 21 notice, it is likely that your claim for
possession will fail and you may also incur a penalty fine against you for one to three times the amount of the deposit. For more information on mydeposits click here.

No Valid HMO Licence – HMO, or housing in multiple occupation, is a property that is shared by five or more people in more than one household. To operate legally, these establishments need special licences from the local authority. Unless one is presented, the section 21 notice will be invalid.

Tenant Ignorance – Tenants sometimes claim they did not receive the letter of notice. This is why it is so important for landlords to keep copies and proof of postage for all correspondence and to follow up with an email as evidence that every effort to contact the tenant was made.

Retaliatory Eviction – The Deregulation Act 2015 contains provisions suspending the operation of Section 21 in order to protect a tenant against retaliatory eviction.

Section 8 – how to evict during a fixed-term

A landlord may wish to evict a tenant during a fixed-term, but in order to do so, they must have a valid reason. There are 17 grounds for possession (reasons that the law gives for when a Section 8 notice can be issued), rent arrears being the most popular grounds.

Grounds under Section 8 are divided into two categories: mandatory and discretionary.

A mandatory ground for possession means that if the court finds in the landlord’s favour, then they must evict the tenant. Under discretionary grounds, the tenant will not automatically be evicted – that will be up to the discretion of the court.

Mandatory grounds under Section 8:

The most common reason for landlords evicting their tenants is rent arrears. Tenants must have fallen behind with a minimum of two months’ rent before action can be taken, but if the tenant is more than two months’ behind with the rent and the tenant and landlord have been unable to reach an agreement to repay the arrears, the landlord can serve a Section 8 notice. The first step is for a landlord to give a tenant written notice of his/her desire for them to leave.

Discretionary grounds under Section 8:

Discretionary grounds under Section 8 are less commonly used and landlords must supply written witness statements. Examples include breach of tenancy, anti-social behaviour, tenants causing damage to the condition of the property or sub-letting the property.

What is the eviction process under Section 8?

There are three steps to evicting a tenant.

Step One – Serving notice – Section 8 Proceedings

A Section 8 notice is a notice seeking possession, which is served to a tenant when they have breached one or more clauses within the tenancy agreement, most commonly being in arrears of rent. If the tenant owes more than two months’ rent, provided there are no exceptional circumstances, the court will probably award a possession order in the landlord’s favour. A possession order can be issued at any time during the tenancy.

If the tenant fails to clear the arrears and/or vacate the property when the section 8 notice expires, then court proceedings are required.

Step Two – Court hearing and what it means

Where a claim is for possession and rent arrears (Section 8), there will be a court hearing before a judge. The landlord will be required to attend the hearing, or appoint an agent to attend on their behalf. The landlord or agent must be fully conversant with the tenancy and have all relevant paperwork readily available, such as the tenancy agreement and an up to date schedule of arrears.

If the tenant clears the arrears prior to the hearing date, then it is unlikely a landlord will get a possession order.

If the claim is successful, the judge usually grants a 14 day possession order; this means the tenant has 14 days from the date of the hearing to vacate. In the event the tenant does not vacate, the landlord will be required to appoint a bailiff to carry out the eviction. In addition, a judgment for the arrears of rent may also be granted, at which point a landlord may also make a claim for interest and costs.

Step Three – Eviction – County Court bailiff

If a tenant fails to vacate on or before the expiry of the Possession Order (which is usually 2-6 weeks), a County Court bailiff must be appointed to carry out the final stage, eviction. Applying for a warrant for eviction can mean the process takes a further 6 weeks. The eviction can only be carried out by a County Court bailiff.

It can take a long time to regain possession of a property through the courts, often 4 to 6 months, and sometimes difficult tenants can delay matters even further, which is why landlords should do everything they can to establish contact and resolve issues, where possible, before taking this route. Landlords should never be tempted to harass the tenant in an attempt to resolve the matter. The penalties for harassment are severe and can result in heavy fines, so always seek professional advice and stick to the correct procedures.

Unless landlords know exactly what they are doing, they should avoid entering the eviction process itself without the advice of a legal professional. Hamilton Fraser group company Landlord Action regularly takes on cases that have been thrown out of court because the original documents had errors or were filed incorrectly.

The goal of any landlord is to get their property back as quickly as possible so even the tiniest compliance mistake can be costly both in time and money.

Top Tips for evicting an unwanted tenant

Paul Shamplina has been in the eviction business for over 25 years. His company, Landlord Action (part of the Hamilton Fraser group), originated the 3-step fixed fee eviction process, helping thousands of landlords with problem tenants. Landlord Action acts on hundreds of cases for landlords and letting agents at a time.

Here, Paul Shamplina discusses the right way to go about evicting an unwanted tenant and offers his Top Tips.

Tip number 1 – Serve prescribed information and protect your tenants’ deposit:

Landlords cannot serve a Section 21 notice if they have not protected their tenant’s deposit in one of the government backed schemes, so always make sure you do this at the start of the tenancy in addition to providing tenants with an EPC, a Gas Safety Certificate and a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’. You must also be compliant with The Deregulation Act 2015 and if applicable, hold a valid HMO licence.

Tip number 2 – Communication trail:

Always keep a record of communication between you and your tenant, and if you have a phone call to discuss any issues, such as late payments or anti-social behaviour, follow this up in writing via letter or email. This could be used as evidence in court.

Tip number 3 – Make contact:

If you have a reason to evict your tenant, such as rent arrears, always try to make contact first to see if you can reach a resolution. Sometimes tenants default through no fault of their own and communication can help to solve the problem before it is taken any further.

Tip number 4 – Avoid ‘Landlord Rage’:

Never be tempted to harass the tenant in an attempt to resolve the matter. The penalties for harassment are severe and can result in heavy fines, so always seek professional advice and stick to the correct procedures.

Tip number 5 – Instruct legal professionals:

Landlords or letting agents can draw up and serve the notice themselves but if this is not something you have done before, it is advisable to instruct legal professionals who specialise in eviction and who are regulated by the Solicitors Regulation Authority. Even the slightest error in the details of the notice can cause a court to throw a case out, meaning the whole process would have to start again which is costly both in time and financially.

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