How to Evict a Tenant
5th March 2021
Author EditorPosted on Categories Legal
Many tenancies come to a natural end, but sometimes a landlord will have to take action to get the property back.
By Paul Rooke, Solicitor, Mayo Wynne Baxter Solicitors
If you want to end the tenancy to regain possession of your property, you will need to serve notice on the tenant. If the tenant does not leave after you have served a valid notice, you will have to apply through the courts for an order for possession. There are two different procedures available to the landlord to terminate an assured shorthold tenancies (AST).
The first step is to give notice to your tenant.
If the AST has expired and it is a no-fault eviction, then you can use the procedure set out in Section 21 of the Housing Act to terminate an AST. A section 21 notice:
• Must be in the prescribed form.
• Cannot be served within four months of the day on which the tenancy began.
• Is only valid for ten months from the date on which the Section 21 notice is given.
• Must not be used where the landlord is prevented from retaliatory eviction.
• Can only be served where the landlord has complied with all legal requirements.
Also, the minimum notice period to be given in a Section 21 is six months. If the tenant does not leave the property within the notice period, court proceedings can be issued. If you need to terminate the AST during the fixed term, then you can use the procedure set out in Section 8 of the Housing Act. The grounds for obtaining possession are set out in the Housing Act and include:
• Rent has been unpaid for a period of
o eight weeks where rent is paid weekly or fortnightly.
o two months if rent is paid monthly.
o three months if rent is paid quarterly.
• The tenant has persistently delayed paying rent.
• The tenant has breached the terms of the AST.
As with a Section 21 Notice, the minimum notice period to be given is six months. However, in limited situations, the minimum notice period is reduced. For example, where at least six months’ rent is unpaid the landlord need only provide four weeks’ notice to the tenant before issuing court proceedings.
If a tenant does not leave a property within the notice period following service of a Notice (be that a section 8 or section 21 notice) then the next step would be to issue court proceedings which must be issued to obtain possession. A landlord must not evict or make attempts to evict a tenant without obtaining a court order. To seek to evict a tenant without a court order is an offence.
There are two different court procedures in place; an Accelerated Procedure and a Standard Procedure. The Accelerated Procedure can be used where:
• The tenancy is an AST.
• It is a written tenancy.
• The landlord is only seeking possession of the property and the claim does not include a claim for payment of rent arrears.
Subject to a defence being filed by the tenant, if the judge is satisfied that the AST has been ended by service of a Section 21 notice and the Claim Form has been served on the tenant then a Possession Order will generally be made without a hearing. The tenant is then usually ordered to give vacant possession of the property within 14 days. Where the claim does not fall within the Accelerated Procedure then the Standard Procedure must be used.
The court normally sets a hearing date when serving the claim on the tenant. The hearing will be at least 28 days after the court issue the claim. At the hearing, the court will either order possession or make directions to progress the claim.
Where the tenant does not leave the property by the date set by the court then the Order for Possession will need to be enforced.
Except in certain circumstances, and at the time of writing, residential evictions cannot be carried out until the end of March 2021.
The limited circumstances by which it will be possible to carry out a residential eviction include –
• Action against trespassers which the occupier is unknown.
• Where the court has ordered possession on the ground of anti-social behaviour, nuisance, domestic violence, or false statement.
• Where the rent arrears outstanding is at least an amount equivalent to six months’ rent.
Despite the difficulties with carrying out evictions this does not mean that a landlord should not take action. Court proceedings can be issued and a Notice of Possession can be obtained.
If you need help gaining possession of a property or in recovering rent arrears then get in touch. We are here to help.
0800 84 94 101