Evicting Undesirable Tenants From Residential Property

You must not under any circumstances put unlawful pressure on the tenant by switching off services or simply changing the locks on them or anything else – no matter what the provocation!

The usual situation is that you have a tenant in occupation under an assured shorthold tenancy, supposedly paying rent monthly but in fact substantially in arrears with his rent.

s. 8 or s. 21?

In that case you have two main options. As always with an assured shorthold you can serve a notice under s. 21 of the Housing Act bringing the tenancy to end. You must give at least two months notice expiring after the last day of a tenancy period. This means that if you have an initial fixed term (often six months or even 12 months) your notice cannot expire before the end of the initial fixed term.

Calculating the end of the notice period is not straightforward and if you get it wrong you will not be able to obtain possession and will have to start all over again. It is therefore definitely worth getting legal advice and instructing a solicitor to prepare the notice.

Assuming you have got the notice right, the tenancy agreement is in order and you have dealt with the property properly (in particular as regards any deposit the tenant may have paid), if the tenant does not move out after the notice expires, you can apply to the court for an order requiring the tenant to give up possession under what is called the ‘accelerated procedure’. This involves a claim being submitted to the court and the court issuing that claim and serving it on the tenant. The tenant then has 14 days to respond.

The tenant has very few ways to argue that they should not be evicted as the claim is not based on any alleged fault of the tenant, simply on the fact that the tenancy has been properly brought to an end and the tenant has not vacated. Once the 14 days are up, you can request that the court makes the order and they will usually grant the order without the need for a hearing – just on the papers submitted to the court.

In theory and normally in practice, you should be able to get an order within about 4 to 6 weeks of the notice expiring. The order will normally give the tenant 14 days to vacate and many tenants will in fact vacate before that date. If they don’t, you can instruct the court bailiff to evict them.

If the tenant is at least two months in arrears you have the option of issuing a notice to quit under s.8 of the Housing Act. This notice is only 14 days and therefore initially looks to be the obvious route particularly since any claim for possession under s. 8 would also include a claim for the back rent whereas a claim following a notice under s. 21 would not.

However, a claim under s. 8 will require a court hearing which may not be arranged for a considerable time, possibly longer than waiting for the term of the tenancy to expire and proceeding under the s.21 notice using the accelerated procedure.

There is also the issue that under s. 8 you have to establish the necessary facts regarding the rent arrears and that gives the tenant more scope to delay matters (and increase costs!) by claiming that they are not legally required to pay some or all of the rent because the property is defective in some way.

You can of course take a ‘belt and braces’ approach and issue a section 8 notice and proceedings and see if those come on before the s.21 notice expires. That avenue ensures that you have the best possible chance of getting your tenant out as early as possible but does involve additional cost because you are potentially looking at running two sets of proceedings in parallel.

Deposits

Deposits taken in respect of residential property need to be protected in one of tenancy deposit protection schemes and the tenant has to be given certain information about that within 30 days of the deposit being taken.

If that is not done in time, you are likely to be ordered to repay the deposit plus up to three times the amount of the deposit. You will also not be able to serve a s.21 notice unless you return the deposit in full to the tenant before you serve the notice.

It is therefore very important that you protect the deposit and provide the required information. The scheme provider should help you with the required information but it is your responsibility to ensure it gets done.

Recovering rent arrears

As set out above proceeding under s. 21 would mean that you are not claiming the rent arrears and if you wanted to do that you would need to start separate proceedings.

Section 8 proceedings would include a claim for the arrears but as always in these cases you need to take a commercial decision on whether you are likely to recover any money from the tenant even if you do get a judgment against them.

Are they really likely to have the money or will it just be a wasted effort? Another problem is that the whole point of the proceedings is to get them out of your property and once they are out, you will probably not know where they have gone. If you don’t know where they are, you can’t get any money out of them.

Costs

Costs will vary from case to case simply because each tenant will react differently. For example, most tenants do not respond to the proceedings and simply wait until they receive the possession order from the court and then vacate.

The reason for this is that most local authorities will not rehouse anyone who leaves before they are ordered to do so by the court. These local authorities take the view if a tenant leaves without a court ordering them to do so they have made themselves homeless voluntarily. This can lead to situations where tenants genuinely wish to vacate without causing problems but can’t because they rely on the local authority to rehouse.

Despite this attitude some tenants do leave of their own volition, thereby saving you the costs of court proceedings. Others will use every possible trick to try to extend their occupation and increase your costs. It is generally impossible to tell beforehand what your tenant will do.

We will of course try to provide you with an estimate before undertaking any action and update this if any thing happens that is likely to change the estimate.

Proceedings under section 21 should be much cheaper than under section 8 because there are usually no court hearings and no witness statements need to be prepared. There are court fees (currently £175) for issuing the claim in either case and if you need the bailiff to evict the tenant there is a further fee from the court for that. You are also likely to need a locksmith in attendance to change the locks on the property.

If you would like to know more or instruct us regarding one of your tenants, please contact Ian Pinder on 01227 813400.

IMPORTANT NOTICE
This literature is intended purely as an overview of this area of law and no action should be taken upon it without specific legal advice