Posted 9 September 2015 by Keith Osborne
It’s a last resort, but sometimes eviction is the only option. If you are in a position where you must take this course of action, it is important to make sure you follow the various legal guidelines, so here’s our guide to the process.
Back to basics
First, study the tenancy agreement and ensure that your paperwork is in order. The majority of agreements are assured shorthold tenancies, but could your tenant actually be a lodger or a common law tenant? This could be the case if you share living space with a tenant or you both have self-contained flats in a building which is not purpose-built.
Is the deposit protected?
Is your tenant’s deposit properly protected in a scheme and have you given the tenant relevant information about how the scheme operates? If you have failed to do this, then you will not be able to rely on the ‘Section 21’ procedure to evict them because the court requires evidence you have secured the deposit.
Can it be resolved?
Carefully consider what the implications of eviction could be in terms of time, cost and hassle and whether it could result in a void while you try and find new tenants? Don’t be hasty - could you still resolve the problem either by arranging a meeting with the tenant or sending a gentle reminder by text or email?
Put it in writing
If this does not work, send a formal letter advising what the breach is and by when you expect the tenant to remedy it. You should also enclose a rent account showing the arrears. Keep copies of all letters/emails and dates of phone calls made or text sent.
Get legal advice
Many landlords take a DIY approach to getting rid of a tenant, but if you are relatively new to the game, consider getting some legal advice first.
Some solicitors and online landlord services will offer a fixed-fee agreement for checking your tenancy agreement, sending a further legal letter to the tenant and then serving the correct notice. They will also be able to advise you of any potential defects with your claim.
The notice stage
The next step is to serve notice on your tenant. If you have a lodger or common law tenancy, then you will usually need to serve a notice to quit.
If it is an assured shorthold tenancy, you will need to give your tenant two months’ notice in the form of a Section 21 notice. This is generally used for ‘no fault’ evictions when you want to get your tenant out quickly and do not want to claim rent arrears. It is vital to get the wording of the notice right and make sure you have given your tenant the correct notice period to leave.
Claiming rent arrears
If you want to recover rent arrears in the same proceedings, then you will need to serve what is called a Section 8 notice, stating what grounds you are relying on under the Housing Act 1988. If you are claiming rent arrears, you need to attach a rent statement.
It may be easier to use the Section 21 procedure to evict your tenant and pursue a separate money claim for rent arrears only, which you can issue online. This is because upon issuing a Section 8 notice and commencing proceedings, your tenant could bring a counterclaim against you alleging the property is disrepair and you become embroiled in costly litigation.
Serving your notice
If you do need to issue proceedings, the court will require evidence that you have properly served the notice of seeking possession/notice to quit on your tenant.
Check your tenancy agreement as to what is allowed in terms of service of a notice. It may be deemed “good” service if the notice is left at the property or sent by first class post. You may find, however, that you or your agent has to personally serve the tenant.
Issuing legal proceedings
You must wait for your notice of seeking possession or notice to quit to expire before issuing court proceedings. The time frame of this is dependent on which notice you use. For a notice to quit, it may only be 28 days, while a Section 21 notice will take two months. The duration of a Section 8 notice will be dependent on which ground you are relying on to claim possession.
Once the papers have been issued, the court will set a date for the first hearing, though there is a special fast-track procedure for cases based on a S21 notice where a court hearing may not be necessary in certain circumstances.
How quickly you will get your possession order, if at all, will be dependent on a number of factors including showing the tenant has been properly served with the relevant paperwork and whether your tenant brings a counterclaim against you.
Waiting for the bailiffs
Once you have got your court order, your tenant will normally be ordered to leave by a specific date. If they fail to do so, unfortunately this is not the end of the legal process. You will then need to apply to the court for a bailiff’s appointment and pay a fee. You and your tenant will be advised of the time and date of the eviction and you will need to attend with a locksmith to change the locks.
If you think your tenant may be difficult on the day of eviction, inform the bailiffs in advance. However, whatever you do, do not carry out a DIY job by putting your tenant’s belongings out on the street and changing the locks. The courts take a very dim view of an unlawful eviction and damages awarded against you could be considerable.