There are approximately 5 million properties in the UK private rental market. It is big business for both landlords and tenants. Over the years the legislation has been expanded to cover the myriad of issues which can arise. Almost all residential tenancies are now created as an assured short hold tenancy, as defined under the Housing Act, although there are a host of other Statutes which influence this market.
Sadly, disputes between landlords and tenants often arise thereby forcing the landlord to end the tenancy, or they may have personal reasons why they can no longer allow the tenancy to continue. When this happens a tenant may be asked to leave but it is the case that some refuse to do so. If a tenant refuses to leave a property a landlord must follow a stringent, legally defined procedure to evict their tenant and recover the property. Failure to follow this procedure can result in financial penalties being levied against a landlord or worse.
Before we discuss the right way to evict a tenant who refuses to leave, let’s first discuss why eviction may be necessary. We’ll also discuss when landlords should exercise their right to end the tenancy.
Reasons for Eviction?
Some sections under the Housing Act 1988 give landlords the right to reclaim their property without providing a reason. However, there are a few common reasons why a landlord might decide to terminate the tenancy and evict their tenant:-
– They could be constantly paying rent late or not paying at all thereby accruing arrears.
– They may be involved in illegal behavior or antisocial activities in and around the property.
Or
– They may have breached the terms of the agreement, given false information during the referencing stage or caused extensive damage through neglect or criminal damage.
It is therefore incumbent on a landlord to formally notify their tenant that they have breached the terms of the agreement. The manner in which this is brought to the tenant’s attention is defined by the type of tenancy arrangement:-
Assured Short hold Tenancies
Assured Shorthold Tenancies – are the most common form of tenancy arrangement in the UK. It is applicable when a rental property is privately owned, when the tenancy started after January 1988, and the landlord doesn’t reside in the property with the tenant. There are two main types of assured shorthold tenancies:-
Periodic Tenancies
Periodic tenancies are those that have no fixed end date and run on a weekly or monthly basis.
Fixed-term Tenancies
Fixed-term tenancies have a predetermined duration or term from when the tenancy will be start and end.
A fixed term tenancy can only be terminated early if there is a specific breach by the tenant. If a landlord is looking to bring a tenancy to an end based on their own personal reasons, which are not defined as a breach, then enforcement cannot take place during the fixed term. The landlord will need to wait until the fixed term has ended although some will often serve a notice to quit to coincide with the end of the fixed term thereby allowing for enforcement should a tenant fail to surrender the tenancy.
It must not be assumed that the end of the fixed term brings about the end of the tenancy. A fixed term tenancy automatically runs into a periodic tenancy at the end of the term if another continuation or renewal is not formally agreed. The tenant’s right to remain in the property after this date is sacrosanct unless the landlord has concluded a stringent legal process to bring the tenancy to an end and enforced the order of a court by way of an approved bailiff.
The legal process is effectively started when a landlord serves their tenant with a notice seeking possession or a notice to quit. However, if a landlord fails to serve any of these notices then any future enforcement activity will almost certainly fail.
There are three primary notices for bringing a residential tenancy to an end; two of which apply to assured short hold tenancies:-
Section 8 Notice
If a tenant has breached the terms of the agreement then depending upon the breach there may be an opportunity for them to remedy the breach. Regardless, any concerns with their conduct or specific breaches of the agreement must be brought to their attention in the first instance. At this time, a mandatory time frame must be offered before any enforcement activity is permitted. This is done by way of a section 8 notice. It’s also known as a notice ‘seeking possession notice’ and comes under section 8 of the Housing Act 1988. There are clearly defined grounds in Statute by which this notice can be served on a tenant.
The most common use for this notice relates to the nonpayment of rent and the accumulation of rent arrears, but there are a host of defined grounds for possession. An added benefit of this notice is that can be served during the fixed-term of the tenancy. Should a tenant fail to remedy the concerns set out in the notice and fail to surrender the tenancy then a landlord can file a claim for possession with the county court under whose jurisdiction the property falls and progress towards a date when the tenant is eventually evicted.
Section 21 Notice
Also known as a ‘no-fault- eviction’ notice, section 21 is a highly contentious piece of legislation as it permits a landlord to end the tenancy for their own reasons and not because the tenant has breached the terms of the tenancy. . A section 21 notice can only be enforced once the fixed-term tenancy comes to an end. The landlord isn’t obligated to provide any reason for eviction under section 21, and for this reason the time frame they must offer to the tenant before enforcement can move forward is usually far longer than what is offered under section 8. Prior to the Covid-19 pandemic the time frame was a minimum of two months but this increased significant with the introduction of the Coronavirus Act 2020. The time frame will revert to pre-pandemic levels from 1st October 2021 although the government reserves the right to exercise emergency powers again should the level of hospital admissions escalate.
A section 21 notice cannot be successfully enforced if served within the first four months from the date of commencement of an assured short hold tenancy. Further, it also cannot be enforced more than four months after the date the landlord was permitted to move forward with enforcement. Re-service of a compliant notice is imperative if these minimum requirements have not be adhered to.
Over the years legislation has been introduced to ensure that a tenant is afforded the rights and enjoyment of a property. Landlords are now obligated to undertake a good number of activities to comply with these regulations or face penalties themselves. A lack of compliance may also prevent enforcement against their tenant. Some examples for compliance which may prevent a landlord from exercising a section 21 notice include, but are not limited to, ensuring there is a valid Gas Safety Certificate for the full period of the tenancy and an operational Energy Performance Certificate served on commencement. Currently, a landlord is also obligated to serve their tenant with the government’s checklist for renting in England. Given the onus in on the landlord to demonstrate they have complied with these requirements they should source and retain evidence of receipt thereby demonstrating these documents have been served on the tenant. If they don’t and the service of these documents is challenged by the tenant they may face the prospect that a claim in breach of section 21 will not succeed.
There are additional grounds by which a tenant can challenge a section 21 notice. For example, they may argue that the notice was served in revenge for them bringing concerns about the property’s condition to their landlord’s attention which resulted in the landlord serving notice rather than remedy the repairs. This can also extend to a situation where the local authority has served a notice of improvement on the landlord. Other such examples include; where a landlord has taken fees from the tenant for any tenancy which commenced after 1st June 2019, in breach of the Tenant Fees Act, or failed to register the deposit and serve the prescribed information in accordance with the De-Regulation Act from 1st October 2015.
Issue a Possession Order
If the tenant doesn’t leave despite a section 8 or section 21 notice having been served, and the corresponding time frame, before enforcement can proceed, has elapsed, it’s the right time to move to the next stage in the possession procedure. To this end, an application for possession must be filed with the county court under whose jurisdiction the property falls. It’s important to recognize that the costs to the landlord are likely to escalate from this stage onwards. As a minimum, there is currently a £355 court fee to pay when filing a claim for possession but there may be additional court fees to pay depending on how the case progresses. There are two procedures which can be pursued depending on whether you are looking to enforce a section 8 notice or a section 21 notice:-
Standard Possession Order
For this, you will need to approach the local country court by filling out form N5 (claim for possession) and form N119 (particulars of claim). These two forms contain the reasons for seeking possession and information about the tenancy. It is a procedure which will ultimately result in a hearing being listed and there being a need for the parties to present their case directly before a county court judge. This procedure also allows for additional provisions such as a monetary claim made in respect of rent arrears for example.
Accelerated Possession Order
The accelerated possession order is available when the applicant isn’t claiming rent arrears or making any monetary claim beyond the costs for filing the application. It is associated with cases where the claim for possession is brought in breach of section 21. The time frame for this procedure can prove shorter than the standard possession procedure, as a judge will consider the case without the need for the parties to attend. The fact that court time is limited it follows that a hearing will take longer to list than a judge reviewing the file ‘on-paper’ and dispenses with many of the formalities associated with a formally listed hearing. It should be noted that a Judge can still decide to list a case for a hearing even though the case was initially filed through the accelerated procedure thereby bringing the time frame for both procedures on parity. . To progress a claim through the accelerated procedure the applicant completes and files the form N5B (accelerated procedure).
If the grounds for possession have been proven then it is standard, during either procedure, for a Judge to enter a 14-day possession order. A court can deviate from this and offer a maximum of 6 weeks should the tenant/defendant request additional time on the grounds of exceptional hardship and evidence their exceptional circumstances.
A Warrant for Possession
The court will set a date by which the tenant should remove their personal possession and surrender the property. If the tenant refuses to leave by this date then a landlord must follow a further procedure to secure vacant possession. At no stage is a landlord entitled to unilaterally remove a tenant from the property themselves. The order for possession therefore provides the gateway by which the landlord can approach the county court bailiff to attend the property and remove the tenant. A warrant for possession can be instructed through the use of form N325 (Request for Warrant of Possession of Land). As with any stage which involves the court there is a court fee to pay to progress the instruction.
Bailiffs for Eviction
Once you’ve applied for a warrant of possession, the country court will appoint one of their internal bailiffs to visit the property and evict the tenant if they are still present at the time of the appointment. A bailiff is a legal officer whose responsibility is to make sure that the court orders are enforced precisely. A bailiff has the authority to carry out the eviction. At this time the landlord will need to send a representative to meet with the bailiff and provide access to the property. If access cannot be granted then a bailiff will decline to conclude the instruction on the day. In these circumstances, the appointment is rescheduled which may result in further considerable delay. Hence, why it is advisable to have a locksmith on hand as a contingency.
This process can take months to conclude; however, this is the last step in the tenant eviction process.
It is common for tenants to leave the property before a bailiff becomes involved, let alone arrives on their doorstep. Should they force a landlord down this path then it will likely add to the monetary judgment entered against them. They may also face the prospect of being unable to take all their possession with them but returning at a time of choosing given by the landlord to collect what they couldn’t carry at the time the bailiff asked them to leave.
A bailiff is authorized to use reasonable force to conclude the Warrant appointment and, in certain circumstances, call for assistance from the police.
How Long Does the Eviction Process Take?
It’s hard to state an exact time frame for the entire process since it varies from case to case and really depends on the case load for the court where the case is considered. A complex or defended case might take considerably longer than a case where the tenant has buried their head in the sand and refused to engage with the procedure. Further, the availability of court dates is certainly a significant factor in determining how long the court procession will take where the grounds for possession relate to rent arrears. However, roughly speaking, it will take a minimum of 8 weeks to secure a Judgment, and possibly a lot longer. If the services of a bailiff are required to secure vacant possession then the time frame could easily double.
While this is a lengthy and complex process, it’s in your interest to follow the procedure to the letter as any infringement could result in a claim for unlawful eviction. Landlords who try to employ illegal means for evicting their tenant usually end up facing punitive charges themselves and possibly expose themselves to a criminal conviction. There are a multitude of firms available to represent tenants who have been treated unfairly or who have been on the receiving end of unlawful conduct by a landlord, and so it’s unwise to think that you can get away with it.
By going through the legal procedure, landlords will ensure there is no recourse to them when they evict their tenant.
Tips for Landlords to Avoid This in The Future
After going through such a lengthy and complex process, a landlord should change the locks on the property once the tenant has left. An inventory should then be undertaken to establish whether there is a case for raising a further claim for damages from the tenant. To this end, a robust move-in inventory will need to have been prepared on commencement of the tenancy so that the before and after position, beyond fair wear and tear, can be established.
It cannot be stressed enough that the possession procedure needed to evict a tenant should not be taken lightly. It is a daunting procedure which must be meticulously conducted at each and every stage if a favorable outcome is to be achieved. The court will not suffer poorly presented claims and will have no reservation striking out a case, thereby potentially pushing you back to square one, if the grounds for possession are not adequately made out and evidenced.
Our property specialists and experts in Landlord and Tenant law here at Landlord Assist have over 15 years of experience navigating landlords through the tenant eviction procedure. From drafting action letters, issuing section 8 and section 21 notices, filing possession claims through to instructing bailiffs; we can efficiently and effectively work through your predicament. We have a proven track record for success. Get in touch with us to avail yourself of our expert Landlord Legal Services Kent today by calling 01843 223223 or emailing enquiries@landlordassist.co.uk.
