Eviction processes have evolved over the years. You must follow strict procedures if you want your tenants to leave your property.
You may have various reasons as to why you wish for your tenants to leave. Ranging from no fault of theirs (Section 21 Notice) or because they are failing to pay rent (Section 8 Notice). There could be several reasons.
Whatever the reason a residential landlord may have to evict a tenant, strict procedures must be followed as set out in the Housing Act 1988. Failure to do so can result in the landlord not being legally entitled to take back the property.
This simple guide briefly outlines the steps we take on behalf of a landlord to take back possession of their property. It’s important these procedures are followed, as taking matters into your own hands could result in landlords facing compensation claims for unlawful eviction. It’s also important because falling foul of technical issues arising from the Housing Act 1988 may mean a court refusing to legally grant you possession of the property.
Step 1 – Consideration of documents and serving the tenant with Notice.
The first step is to serve the tenant with the correct notice giving them the required period of time to leave. Commonly, either a Section 8 Notice of Section 21 Notice is served, depending on the grounds upon which you are wanting to take your property back. Each one also varies on the period of time which you are required to give your tenant to leave.
When you instruct us, we will review your documentation, prepare the notice on your behalf and formulate the grounds. We also take the hassle out of checking all the matters beforehand have been done properly, for example, before you can issue a Section 21 Notice (the no-fault procedure), you must ensure you have served on the tenant an Energy Performance Certificate, How to Rent Guide and a Gas Safety Certificate from the outset of the tenant. If you haven’t done this, then you must first do so before serving a notice as it is invalidated without any of these not having been done. This requirement is only applicable to a Section 21 Notice and not a Section 8 Notice (non-payment of rent or any other breaches of the tenancy agreement).
You should also ensure that any Deposit taken in relation to the tenancy is protected in one of the prescribed Tenancy Deposit Scheme. This must have been done within the first 30 days of receiving the deposit. If you have not done this, your tenant could be entitled to compensation.
It’s vital that from the outset the correct notice is served and legal advice is taken on what must be in place beforehand. Far too often, landlords have served their own notice, then issued court proceedings only to find that their original notice was invalid only to instruct us to re-serve and start the process again. This not only delays the process but is costly to the landlord especially if they are not receiving rent.
Step 2: Issuing court proceedings
Once the relevant time has expired, and the tenant has either not left or cleared their rental arrears, you would then need to issue proceedings in court to get a court order to remove the tenant.
Under no circumstances should you enter the property yourself and take the property back. Not only could this amount to a criminal offence, you could also be sued for compensation to the value of thousands of pounds, including legal costs if the tenant uses a solicitor to bring the claim.
We assist you with the preparation of the court paperwork ensuring it has been properly lodged at court in the correct manner.
Step 3: Attend the court hearing or receive your court order.
Section 8 Notice
At the hearing, the court will usually grant the possession. The tenant does have the right to defend the claim and they must attend the hearing in order for them to rely upon a Defence.
Provided the procedure was followed and depending on the ground for possession, the court will normally grant the possession unless there is a complaint about disrepair in the property which is why the tenant has not paid rent or a complaint about the landlord having harassed the tenant.
If the tenants arrears are small in amount and they convince the court they will eb able to clear their arrears in a short period of time and continue paying rent, then the court does have the option of ordering a “Suspended Possession Order”. The effect of this means that provided the tenant clears the arrears and puts themselves bac on track in so far as paying rent, the court will not order the possession unless they then default on payment. If that happens again, then the possession is granted immediately by application to the court.
If the tenant does not turn up to the hearing or the court rejects the tenant’s defence, it will order that possession be granted to the landlord. The usual time period for the court granting possession of a property will be 14 days. However, if the tenant can prove to the judge that they would suffer “exceptional hardship” if possession was granted in 14 days, then the judge can consider extending this period up to a maximum of 42 days. The judge does not have any legislative powers to go beyond this date. Ill health is usually a factor considered when the judge considers whether exceptional hardship will apply.
Section 21 Notice (accelerated possession)
By proceeding under the Section 21 Notice accelerated procedure, there is usually no court hearing and the court deals with the process on paper. This process is used if there are no arrears or breach of the tenancy agreement or if the landlord is not seeking to recover any arrears and would prefer to have the tenant simply leave.
Future changes to the law – Section 21 Notices
The government’s proposed legislation, the Renters Reform Bill seeks to introduce changes to Section 21 notices, meaning that, it calls on a complete ban on using this process where there is no breach of a tenancy agreement. Effectively, this will mean you cannot evict a tenant unless they stop paying rent or they breach the tenancy agreement.
There is no clear guidance as of yet as to when this will be introduced, however, we will keep an eye on any developments and update this section if there is.
Wakash Waheed
Head of Civil and Commercial Department
Whiterose Blackmans Solicitors LLP, Diamond House, 116 Brudenell Road, Leeds, West Yorkshire, LS6 1LS