Many landlords approach us for assistance in evicting a tenant from a residential property. We have been instructed by landlords who own one or two rented properties to landlords who have large property portfolios. We also receive instructions via landlords’ agents.
Protection from Eviction
In England all tenants occupying residential properties are protected from eviction. This means that you cannot evict a tenant who will not leave a property voluntarily without a court order, known as an order for possession.
The eviction process can be complicated and depends largely on the type of renting agreement in place between the landlord and tenant.
Types of renting agreements
Most landlords create assured shorthold tenancies (“AST’s”). Sometimes landlords can unwittingly create a different type of agreement. You may struggle to identify the type of agreement created if you do not have a written agreement with your tenant. If you are unsure of the type of agreement that has been created we can assist you in identifying the type.
Whether the agreement is written or verbal the important aspect for all landlords to remember is that the tenant is still protected from eviction.
If you do not have a written agreement this does not mean you cannot evict a tenant. The procedure for evicting the tenant will be slightly different however you can still apply to the court for a possession order.
It is usual for landlords to create tenancy agreements for a fixed term such as six months or a year.
Once a fixed term expires landlords usually allow the tenancy to automatically continue to roll on from month to month. When this happens, the tenancy is called a periodic tenancy.
Ending a tenancy – Assured Short hold Tenancies
If a tenant will not leave a property voluntarily landlords must follow a set of rules to end a tenancy meaning they will have to go to court to get an order for possession.
Depending on whether the tenancy is still in the fixed term or a periodic tenancy a notice a needs to be sent to the tenant. This will either be a section 8 notice or a section 21 notice.
Section 21 Notice
A section 21 notice gives the tenant two months’ notice to leave the property, after which a landlord is entitled to issue court proceedings.
A section 21 notice can be served during the fixed term however a landlord cannot begin court proceedings until the fixed term has expired.
You do not need a reason to evict a tenant when using a section 21 procedure however a court can dismiss a landlord’s claim if the section 21 notice is not valid.
There are many ways in which the notice may not be valid. Below are a few examples:
- Prior to serving a section 21 notice a landlord must ensure that the tenant has been given copies of:
- The most recent gas safety certificate;
- An Energy Performance Certificate; and
- How to Rent Booklet. This is a booklet published by the government and can be found online for landlords to print and give to the tenant.
- If a landlord has not provided the above documents before the section 21 notice is served, the notice will not be valid and any claim in court will be dismissed.
Tenancy Deposits
Another common problem landlords face is a failure to protect a tenancy deposit. If a deposit has not been protected a section 21 notice will not be valid.
We have successfully assisted landlords in evicting tenants in cases where the deposit has not been protected. For more advice on this contact us to discuss the options available.
Section 8 Notices
If a landlord wants to evict a tenant during the fixed term a section 8 notice must be served. Unlike a section 21 notice there must a ground (a reason) for evicting the tenant.
The grounds under which a landlord can seek a possession order are contained in Schedule 2 of the Housing Act 1988. Some of the grounds include:
- Rent arrears;
- Involvement in criminal or antisocial behavior; and
- Breaking other terms of the tenancy agreement like damaging the property.
Depending on the reason for eviction, the notice period will be either 14 days, 4 weeks or 2 months.
Which Notice?
A landlord can serve a section 8 notice and a section 21 notice at the same time. Some of our clients chose to send both notices in order to keep their options open. Sometimes it is better to use the section 21 procedure over the section 8 procedure as it is simpler. Depending on individual circumstances we can advise you on which procedure may be better for you.
Cases we have acted on
Section 21 notices
- Successfully obtained possession orders for landlords:
- Who have failed to protect deposits.
- Do not have written tenancy agreements.
- Do not have signed tenancy agreements.
- Tenants claiming deposits have been paid when they have not.
Section 8 Notice
- Acted for a landlord whose tenant had induced the landlord into granting a tenancy agreement by false statement.
- The property was a licenced house in multiple occupation.
- The tenant was granted a tenancy for one room and common areas of the property.
- On occupying the property, the tenant, his wife and two children moved into the room.
- The house became legally overcrowded and breached the licence. The tenant was also in rent arrears.
- We successfully obtained a possession order.
Other Cases
- Acted for landlords in dealing with rogue agents;
- Defended landlords who have been accused of illegal eviction;
- On one matter where the landlord was accused of unlawful eviction we secured a settlement agreement for the tenant to leave the property voluntarily, saving our client costs and the need to attend a trial;
- Acted for a landlord who had obtained a possession order and instructed High Court Enforcement to evict the tenant. The tenant made an application asking the court to set aside the possession order. The tenant accused the landlord of unlawful eviction and sought to challenge the type of tenancy agreement. As the tenant had failed to make the application promptly we argued that the court order which gave the landlord possession should not be set aside. He retained possession of the property.
Contact us to find out more or to arrange a consultation.