What to do when evicting your tenant is the only option

Posted 17 August 2015 by Keith Osborne

Evicting a tenant is a step that no one enjoys taking but sometimes it may be the only solution if the tenant is not paying the rent or refuses to leave at the end of the tenancy. Here we guide you through the process step by step…

Step 1: Back to basics

Before even considering evicting your tenant, check your tenancy agreement and that your paperwork is in order. Although the majority of tenancies will be assured shorthold tenancies, could your tenant actually be a lodger or a common law tenant if you share living space with them or you both have self-contained flats in a building which is not purpose-built? Be clear on their status.

Step 2: Is the tenant’s deposit properly protected?

If your tenant is an assured shorthold tenant and you have taken a deposit, is it properly protected in a scheme and have you given them the relevant information about how the scheme operates? If you have failed to do so, then you will not be able to rely on what is called the ‘Section 21’ procedure to evict them (see below) because the court will want evidence you have secured the deposit and without this evidence, your case will be thrown out.

Step 3: Is there any other way of resolving the dispute amicably?

Although evicting a tenant is not necessarily a remedy of last resort, do carefully consider what the implications could be in terms of time, cost and hassle. Could it result in a void while you try and find new tenants? Think whether you could try and resolve the problem either by arranging a meeting with the tenant or sending a gentle reminder by text or email. Consider also whether you could use the deposit to recover some of the arrears at the end of the tenancy.

Step 4: Put in writing how you want them to remedy the breach

If this does not work, then send a more formal letter advising what the breach is (often late payment of rent) and by when you expect them to remedy it. You should enclose with this letter a rent account which shows the arrears. Keep copies of all letters/emails and dates of phone calls made or text sent.

Step 5: Consider getting legal advice

Many landlords take a DIY approach to getting rid of a tenant, which is fine if you are experienced but if you are relatively new to the game, consider getting some legal advice first, as evicting a tenant can prove costly if you get it wrong.

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 to your claim.

Step 6: The notice stage

If none of the above has worked, the next step will be to serve notice on your tenant and it is crucial to get this right. If you have a lodger or common law tenancy, then you will usually need to serve a notice to quit.

However, if it is an assured shorthold tenancy, you will need to give your tenant two months’ notice in the form of a S21 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. However, you must get the wording of the notice right and made sure you have given your tenant the correct notice period to leave.

Step 7: What do you do if you also want to claim 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, which must state what grounds you are relying on, under the Housing Act 1988, and give particulars. If it is rent arrears, you need to attach a rent statement.

However, remember that it may be easier to use the S21 procedure to evict your tenant and do a separate money claim as a small claims for rent arrears only, which you can issue online. This is because if you rely on a Section 8 notice and then issue proceedings, your tenant could bring a counterclaim against you alleging (usually) the property is disrepair and you become embroiled in costly litigation.

Step 8: Serving your notice

If you do need to issue proceedings, then the court will require evidence that you have properly served the notice of seeking possession/notice to quit on your tenant. This is to ensure that the notice has come to their attention. 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. However, you may find you or your agent has to personally serve the tenant.

Step 9: Issuing legal proceedings

You need to wait for your notice of seeking possession or notice to quit to expire before issuing court proceedings. How long this will be take will be dependent on which notice you use. For a notice to quit, it may only be 28 days while for a Section 21 notice, it will be 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 although 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.

Step 10: 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.

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