Tag: eviction process landlords

How To Legally Evict Your Tenant (GUIDE)

by TLAChairman | Nov 8, 2020

As of 06th November 2020 There Is No Ban On Evictions Of Tenants Although Bailiffs Have Agreed On The Request From The Justice Secretary To Suspend Action Until 2nd December – Which Has Been Agreed By Both Representing Bodies. Eviction Procedures Will Take Some Weeks To Get Through To The Court Stage (At The Least!) New Eviction Procedures Are Still Current And Viable For Landlords With Tenants In Rent Arrears And All Attempts To Fairly Resolve By Negotiation Of Payments Terms Has Been Exhausted (Dealing With Rent Arrears Guide To Follow Shortly – 07th Nov 20)

• Section 21 or Section 8 notice
• Serve a section 21 notice of possession
• Serve a Section 8 eviction notice
• Make a possession order
• Private Residential Tenancy in Scotland

The two types of assured shorthold tenancies

The following advice only applies to shorthold tenancies. The two types of assured shorthold tenancies are:

• ‘periodic’ tenancies – these run week by week or month by month with no fixed end date.  They can also arise following the expiry of the fixed term tenancy if it is not renewed for another fixed term.
• fixed-term tenancies – these run for a set amount of time.

Should I use a professional notice server?

Sometimes a tenant will not answer the door, so can’t have notice served on them. The way to deal with this is to take a witness and put the notice through the letterbox before 5pm. It is then deemed to have been served on the following day.

If this is inconvenient or it is difficult for you to visit the property personally or if you are worried about a confrontation with a tenant, use a professional process server.

Section 21 or Section 8 notice?

If you’re looking to notify your tenant that you’d like them to leave your property, it will be necessary to serve either a Section 21 or Section 8 notice under the Housing Act 1988.

• A Section 21 notice of possession is served to give ‘notice of possession’ to the tenant.  This means you can take back possession of your property at the end of a fixed-term tenancy agreement, or trigger an agreed break clause. Importantly, you don’t have to provide any reason to claim possession when you serve a valid Section 21 notice.
• A Section 8 eviction notice is served when you have grounds for eviction.  For example, the tenant has not paid the rent, damaged the property or is causing a nuisance. In such cases you can terminate the tenancy during its fixed term if the tenant has breached the tenancy agreement. But your tenant may dispute it, and it could go to court where you’ll need to evidence the reason for the eviction.

Even if you have good grounds for eviction, it might be more effective to serve a section 21 notice. 

For example, if the fixed term tenancy is coming to an end or the tenancy agreement includes a break clause which can be triggered to bring the tenancy to an early end.

You can, however, serve both a Section 21 and a Section 8 notice at the same time, and issue court proceedings based on one or both notices.

The notices are totally independent and served for distinct reasons, but produce the same outcome – you get your property back.

Tenancy Deposit Schemes (‘TDS’)

If you or your letting agent don’t protect a tenant’s deposit, it can can prevent you from using a section 21 notice to recover possession of your property.  

The tenant could also raise a claim against you for the return of the deposit and a penalty of as much as three times its original value. Read more about deposit protection schemes.

Serve a section 21 notice of possession

A Section 21 notice isn’t technically an eviction notice, but a notice to inform the tenant that you, the landlord, wish to recover possession of the property once they’ve left.

The first step is to give the tenant no less than two months’ notice that you need them to vacate the premises at the end of the tenancy.

If a fixed term of the tenancy has come to an end or there is a break clause that can be triggered, you can serve a Section 21 notice of possession.  

You can serve it even if the tenant hasn’t done anything wrong and you don’t have to provide a reason for recovering vacant possession of the property.

But, a Section 21 notice must be served correctly if you want to be able to enforce it in court.

Serving a Section 21 notice

Here are some dos and don’ts for serving a Section 21 notice:

• Do give the tenant at least two months’ notice using the prescribed form of section 21 notice
• Do serve the right amount of notice in writing, being careful to specify the required date of possession
• Do try to be accommodating and reasonable, especially if you are trying to end a tenancy with tenants that have always been good to you and might not want to leave
• Don’t try and serve notice to expire earlier than the last day of the fixed term, unless the tenancy agreement makes provision for this
• Don’t underestimate the importance of getting the two months’ notice and date to vacate correct, as it’s unlikely you’ll succeed in possession if this is wrong
• Don’t respond in a way that could be regarded as harassing or anti-social if a tenant becomes difficult or refuses to leave, as this could result in a tenant claiming harassment damages in court
• Don’t forget a landlord is entitled to possession by default if a valid Section 21 notice is properly served

The Deregulation Act 2015 introduced changes to the way in which tenancies can be brought to an end using the Section 21 procedure.

Originally it only applied to tenancies that were agreed on or after 1 October 2015. But, from 1 October 2018 it applies to all tenancies – regardless of when it was agreed.  

The most important rules are:

• A Section 21 notice can’t be served during the first four months of the tenancy  But, if the tenancy has been renewed following the end of a fixed term, you can serve a Section 21 notice at any point during the renewed tenancy.
• The Section 21 notice will only be valid for six months from the date it was issued  If possession proceedings are not issued during the six month period, another notice will have to be served.
• Complaints about the property  If your tenant makes a legitimate complaint about the condition of your property and you fail to deal with it, the tenant may then refer the matter to the local housing authority. A section 21 notice issued after the initial complaint will be invalid once the local housing authority notice is served.
• Use the right form  You must use form 6A to make a section 21 notice. You can use our template letter to give a tenant notice of possession under Section 21, alongside the 6A form.

The tenant must also be given the following information when they start renting for a Section 21 to be valid:

• A Gas Safety Certificate
• An Energy Performance Certificate (EPC)
• The ‘How to Rent‘ guide, this guide must be given to a tenant at the start of any new tenancy.  

3Serve a Section 8 eviction notice (Document Coming Soon)

If you have grounds to evict a tenant, you can start the eviction process by serving a Section 8 notice seeking possession.  

The grounds for serving a Section 8 eviction order are set out in Schedule 2 of the Housing Act 1988.

The most common reasons for evicting a tenant are:

• rent arrears
• damage or disrepair to the property
• nuisance.  

You must give your tenant a postal address in England or Wales that they can use for correspondence before rent can be treated as due.

To give your tenants notice using a Section 8, you must fill in a ‘Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy’.

You must specify on the notice what terms of the tenancy have been breached and have to give between two weeks’ and two months’ notice depending on which terms you are relying on.  

You’ll then need to apply to the court for a possession order if your tenants do not leave by the specified date.

Serving a Section 8 notice 

Here are some dos and don’ts for serving a Section 8 notice:

• Do try to get your tenant to surrender the tenancy or reach a mutual agreement before serving the notice
• Do consider a Section 21 notice instead, particularly if it’s approaching the end date of the agreed tenancy or it is a periodic tenancy.
• Do be aware that if you end up going to court, the outcome might not go your way with the effect that no order for possession is granted, especially if the tenant has remedied the breach that you relied on to seek possession
• Don’t think a Section 8 guarantees eviction, as a tenant may choose to ignore the notice and a judge in court may not decide in your favour

Make a possession order

If you’re tenant refuses to leave after being served an eviction notice you can take action

You can use an accelerated possession order if you served a Section 21 notice, there is a written tenancy agreement and you are not claiming any unpaid rent.

You can use the standard possession claim if you served either a section 8 or 21 notice, or want to get your property back and at the same time claim rent arrears from the tenant.

If the tenant fails to vacate after the order for possession has expired, it will be necessary to instruct the County Court Bailiff to evict – this may take a further four to six weeks or more depending on the County Court.

Standard possession claims

For standard possession claims you need to find the County Court for the area where the property is situated, then fill in a Form N5 claim for possession and N119 particulars of claim for possession:

• N5 form for properties in England and Wales (this form is also available in Welsh)
• N119 form for properties in England and Wales (this form is also available in Welsh)

You will not be able to use the online service for some kinds of standard possession claim, for example where you are making a claim against a squatter or trespasser.

The accelerated possession procedure

You can opt for an accelerated possession order if your tenants haven’t left by the date specified in your Section 21 notice, there is a written tenancy agreement and you aren’t claiming rent arrears.

The accelerated possession procedure is sometimes a quicker way to gain possession as there is usually no court hearing, but you will need to pay the court fee before the action can commence.

For accelerated possession you need to find the County Court for the area where the property is situated, then fill in a Form N5B claim for possession (accelerated procedure):

• N5B form for properties in England
• N5B form for properties in Wales

The court will then send a copy of the application to the tenant, together with a form of reply allowing the tenant to lodge an objection within 14 days, if they wish to.

If successful, you will get an order for possession without a hearing (normally enforceable 14 days after the order is made) and an order that the tenant pay the court fee.

If the paperwork is not in order or if your tenant raises an important issue in their objection, there might be a court hearing.

From the issue of proceedings to receipt of the order for possession, these proceedings normally take between six and ten weeks assuming nothing goes wrong.  

Private Residential Tenancy in Scotland

The new Private Residential Tenancy (PRT) in Scotland has been introduced under the Private Housing Tenancies Scotland Act 2016. It came into force on 1 December 2017.

What you need to know about leasing a property under the new tenancy in Scotland:

1. Existing tenancies will not change automatically. They will carry on until the tenant or the landlord brings it to an end by serving notice.
2. The new PRT will have no end date. It can only be terminated by a tenant giving written notice to their landlord or by the landlord using one of 18 grounds for eviction. 
3. Tenants will have the right to challenge a wrongful termination.
4. Landlords can only increase rent once a year. They are also required to give tenants three months’ written notice of any rise. 
5. Tenants can challenge a rise in rent if they think it is unfair.
6. Landlords will benefit from a more accessible repossession process and a simplified way to give notice.
7. The new standardised private residential tenancy agreements are now available for landlords.
8. Read the guides for landlords to find out more about the changes.
9. Read Shelter’s new online enquiry system (Ailsa) that helps explain the new tenancy in Scotland.

Other useful renting guides

The Department for Communities and Local Government has produced guides which include useful tips for both landlords and tenants.

• The ‘How to Let‘ guide is aimed at landlords and gives an overview of the private rented sector and includes the requirements for the protection of deposit and good practice suggestions.
• The ‘How to Rent‘ guide is a guide aimed at tenants and contains details of the main protections afforded to tenant.  
• The ‘How to Rent a safe home‘ guide is for prospective tenants and is a supplement to the ‘How to Rent’ guide.  It gives a detailed explanation of the main hazards you can find in a rental property.  It also explains your landlord’s duties and what you can do if you have concerns or need to make a complaint.