Evicting a residential tenant

Tenant Eviction Solicitors

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Landlords with assured shorthold tenants occupying their residential properties are often shocked to discover that, where tenants do not vacate at the end of the agreed tenancy term, it can take months to obtain possession via a court order. Even more frustrating is that during this period some tenants stop paying rent.

How to evict a residential tenant

There are 2 ways to get an eviction order.

• Accelerated possession procedure - based simply on expiry of the term and the procedure is set out in section 21 of the Housing Act 1988. This is known as the accelerated possession process (although it is not fast in reality – see below) and cannot include any financial claim against the tenant, such as arrears of rent.

• Section 8 procedure - set out in section 8 of the Housing Act 1988  based on breach of the lease agreement. This is most commonly failure to pay rent. The advantage of this is being able to obtain a financial judgment as well as possession order. The main risk is that the tenant will try to counterclaim, alleging breaches of the lease by the Landlord which can mean no possession order pending a trial of the issues. The tenant may also reduce any rent arrears, buying time and stopping a possession order.

An error such as missing an important date or a mistake in the statutory notices or paperwork can mean you have to start the whole process again.

Section 21 notice for accelerated possession procedure

This is considered the faster way for landlords to evict tenants who haven't left after a proper notice period (Section 21 notice) and no rent arrears are claimed. There's no court hearing if the paperwork is in order and the tenant doesn't contest the eviction.

Benefits:

• Faster eviction process compared to the standard procedure.

• Lower court fees compared to standard possession order.

The minimum notice required in a section 21 notice is 2 months. With a section 21 procedure, possession proceedings need to be brought within six months of the date of service of the notice. If the date specified in the notice is more than two months after it was served, the proceedings can be initiated no later than four months from that date.

The risk with the section 21 notice process is that the notices are quite technica and an error means you have to start the whole process again, including giving the 2 month notice. The tenant may also still not leave even where the possession order is made.

Section 8 notice and procedure

The notice must be in the correct form and must specify the grounds for possession (a list of which is found in Schedule 2 of the legislation).

The most common ground for this type of notice being served is rent arrears.

The minimum notice required in a section 8 notice varies depending on which ground is being relied upon. For example, if rent arrears is the ground for possession, the notice period is just 2 weeks. However, other grounds may require up to 2 months’ notice. Under the section 8 procedure, proceedings must be started within 12 months after the notice is served

Other technicalities that Landlords must comply with

Landlords must be able to demonstrate that they have given tenants a copy of an Energy Performance Certificate, a Gas Safety Certificate, the current edition of “How to rent: The checklist for renting in England” and complied with the Tenancy Deposit Protection scheme.

Eviction order obtained but tenant still doesn’t leave

In some cases, assured shorthold tenants still do not vacate even after an eviction order. The tenant may apply to the court to postpone possession claiming 'exceptional hardship' and asking for additional time to leave. If the court agrees it can order that the tenant can remain for up to an additional 6 weeks.

Some tenants just ignore an eviction order, sometimes on the basis that only after being evicted by bailiffs will they be considered unintentionally homeless for the purposes of claiming Local Authority Housing.

You cannot lawfully evict a tenant yourself and if you do you may face criminal as well as civil liability. Instead you will need to apply for a warrant of possession and wait for the Court bailiffs to obtain possession for you.