Eviction is an emotive word, conjuring up Dickensian images of helpless tenants at the mercy of their landlords. Of course, the law has changed radically since the 19th century and has evolved to afford both landlords and tenants a degree of protection.
Most landlords serving eviction notices are doing so perfectly reasonably because a tenancy has either come to an end (Section 21 Notice) or the tenant has broken the tenancy agreement, such as failing to pay rent or damaging the property (Section 8 Notice). Regardless of why an eviction is necessary, landlords must follow a strict legal process as laid out in the Housing Act 1988, and this brief guide sets out the steps a landlord must take if they are to take legal possession of their property. If a landlord chooses to take matters into their own hands, they may find themselves owing thousands of pounds in compensation for unlawful eviction or facing additional costs and delay because they have missed key deadlines or not followed the correct procedure.
Step 1: Reviewing documents and then serving the tenant with Notice
There are various Notices that you can serve on a tenant to obtain possession of your property. You could serve a Section 8 Notice or a Section 21 Notice. It depends on the type of your tenancy, and the grounds upon which you want your property back.
When you first instruct us, we will review your tenancy agreement, any guarantor agreement, and any other documents, and draft the appropriate notice on your behalf. We will also advise you if certain steps need to be carried out prior to serving a notice. For example, if you want to serve a Section 21 Notice on a tenancy created after 1 October 2015, you must check that you served the EPC, How to Rent Guide and Gas Safety Certificate on the tenant at the outset of the tenancy. If you have not done this, then you must serve these on your tenant before serving the Section 21 Notice. Failure to do so will invalidate the Notice. This requirement only applies to a Section 21 Notice and not a Section 8 Notice.
You should have also protected any deposit received in a Tenancy Deposit Scheme and serve the prescribed information on the tenant. If you did not do this within 30 days of receiving the deposit, your tenant could claim compensation from you.
It is vital that you serve the correct, compliant notice. We have seen many occasions where a landlord has served their own notice, waited the notice period to issue proceedings, and then found out their original notice is not compliant and had to instruct us to serve it again, and wait for the notice period to expire once again. This delays the process and can be costly, particularly if the landlord is not receiving rent.
Step 2: Issue proceedings
If the tenant refuses to vacate once the notice expires (and the notice period depends on what ground you seek possession), then you must issue proceedings with the court to remove your tenant.
The most common notice periods are at least 2 months for a section 21 Notice, and 2 weeks if the tenant owes 2 months or more worth of rental arrears. There are other grounds with different notice periods, depending on the reason for evicting your tenant.
You should never enter the property and evict the tenant yourself because you could face a claim against you for unlawful eviction and end up being ordered to compensate the tenant to the tune of thousands of pounds.
Step 3: Attend the court hearing (unless it is an accelerated Section 21)
The tenant has an opportunity to put in a Defence to the claim as to why they are not vacating prior to the possession hearing. Most tenants very rarely do this and will seek advice from the lawyer providing free advice at the court on that day.
Accelerated Possession is when there are no arrears or the landlord is not bothered about recovering the arrears, and the process is undertaken by paper, and there is no physical hearing.
If the paperwork is in order, and depending on the ground for possession, it is unlikely the tenant will be able to defend the possession proceedings. If the tenant raises issues about disrepair in the property being the reason that they are not paying rent (which they have complained about numerous times to the landlord), then the matter may be relisted and head to trial.
If the tenant is only in arrears by a small amount and the court is satisfied they will be able to clear these in a short period of time and continue to pay the rent, then the court may order what is called a “Suspended Possession Order”. This means that as long as the tenant pays the agreed rent to catch up with the arrears, the court will not order Possession but if they default on payment, Possession is either automatically granted, or the landlord could apply for Possession without having to issue a further claim.
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.
Step 4: Enter the property/obtain a Warrant of Possession
If the tenant has handed the keys back to you or your estate agents, then they have given up possession and you can enter the property and change the locks. However, if the tenant has not returned the keys, then you need to be careful about entering the property. If there is any indication the tenant is still in the property you must not enter.
If you cannot be certain they have left, then you need to apply to the court for a Warrant of Possession, which means that an appointment is made for a bailiff to attend the property on a fixed date to remove the tenant. You and the tenant will be advised about the date, and you should attend with a locksmith. The bailiff can use reasonable force to evict the tenant.
Once the tenant has left, you can change the locks, and do what you need to do with your property.
If there are items left in the property, you need to take care of disposing of such items and should seek legal advice. Otherwise, you could end up with a claim against you for discarding a vintage item worth thousands!
Future changes to Section 21 Notices
As part of its commitment to ‘levelling up’, the government is proposing to introduce new legislation, the ‘Renters Reform Bill’, to include changes to Section 21 Notices. The Bill has been described as providing the ‘biggest change to renters' law in a generation – improving conditions and rights for millions in the private and socially rented sector’. It proposes banning Section 21 ‘no fault’ evictions and preventing unscrupulous landlords from taking advantage of tenants, while strengthening the legitimate grounds for landlords with genuine reasons for seeking an eviction. There is as yet, no timetable for the introduction of this legislation but we will be keeping a close eye on developments and will provide an update in due course.