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Evicting tenants should always be a last resort, but whether you’re a landlord or an agent, at some point in your career you may find that you need to use the court eviction process. Whatever the reason for eviction - whether the tenancy isn’t working out, the tenants are behind on their rent or your circumstances have changed and you need the property back - our guide to eviction explains the eviction process and the legal requirements of eviction, as well as providing some top tips to make sure the process is as smooth as possible.
The most common reasons for evicting a tenant are:
Evicting tenants and ending an assured shorthold tenancy is often a fraught process for landlords, but the costs can be especially high if mistakes are made. Keeping up with changes in legislation has never been more critical, as failure to comply can impact a landlord’s ability to evict a tenant when things go wrong – it is a criminal offence for a landlord to evict a tenant without following the correct legal procedure. So what steps should you take to make sure you’re following the correct eviction process?
In the vast majority of cases, the contract between a landlord and tenant takes the form of a tenancy agreement, and the most common tenancy agreements for lettings in England are for Assured Shorthold Tenancies (ASTs). ASTs can be terminated principally by reliance on the grounds for eviction laid out in a Section 21 notice or a Section 8 notice covered by the Housing Act 1988 as amended. Some of these grounds are mandatory (the court must agree to them) and others are discretionary, where the judge decides the outcome.
Both Section 21 and Section 8 notices are used to serve notice on a tenant, however they are very different, and it is vitally important that the correct notice is served to avoid delay and expense. Always use the latest available notice from the government website.
As a landlord or agent it’s important you familiarise yourself with the Section 21 and Section 8 rules, as well as tenancy agreements, and how you go about ending a tenancy. The Government has produced a free model tenancy agreement with guidance available to download.
Having a written tenancy agreement in place and signed makes sure all rights and responsibilities are clearly agreed between the parties. Clauses in the agreement must be reasonable and lawful otherwise they won’t stand up in court. Some terms are prescribed by law, while others are implied by the actions of the parties, but having a clear and legally compliant agreement means that disputes can be resolved more easily.
You also need to show that an AST existed and when it started if you want to use the accelerated Section 21 notice eviction process, and this is not possible without a written and signed tenancy agreement.
An Assured Shorthold Tenancy can be either fixed term or periodic:
Whether your tenant is on a fixed term or periodic AST it is important when it comes to the process of eviction to know when to serve notice, what notice to serve and how long the notice period is.
The rules will change considerably with the advent of the Renters (Reform) Bill and the eventual removal of Section 21 evictions, but it will be some time as of July 2023 before this becomes law. To read more about the proposed changes and how they will impact tenancies, read our separate article, ‘Renters (Reform) Bill: what’s happening to evictions and Section 21?’ In the meantime landlords and agents can still rely on the relatively straightforward process of evictions using the Section 21 process.
Section 21 is often referred to as the “no-fault” eviction process, but clearly this is not a “no reason” eviction process, because as stated above, there is always a reason for its use. And although this is also referred to as an “accelerated possession” process, it is by no means quick: from giving notice (two months) it can take on average six to nine months for landlords to get vacant possession.
Nevertheless, Section 21 has a degree of certainty about it because providing all the prerequisites and legal protocols are complied with, possession is pretty much certain. It’s not open to the discretion of a judge. You can serve a Section 21 notice to end an AST - providing six months is up, or a longer contracted tenancy term has ended - without providing a reason or ground for possession. If a landlord serves a valid notice on a tenant the court must make out a possession order.
Sometimes landlords are forced to issue Section 21 notices so that tenants can be re-housed by their local council. Tenants make themselves voluntarily homeless if they leave before they are evicted, which means that the council won’t rehouse them.
A Section 21 notice served for fixed term and statutory periodic tenancies using the correct form must give at least two months' notice – it cannot usually be served within the first four months of the tenancy. A statutory periodic tenancy arises automatically when a fixed term assured shorthold tenancy ends. A Section 21 notice served during the fixed term remains valid in a subsequent statutory periodic tenancy.
The notice must not expire before the last day of the fixed term, which means it cannot be served within the first four months of a six month AST tenancy, or when the fixed term has not ended, unless there is a clause in the tenancy agreement which allows this.
A landlord is not required to serve a Section 21 notice in any specific way. If the tenant does not acknowledge service, a landlord must prove that the notice was served. It is still not clear whether a valid notice can be served by email but this is likely possible where the tenant has agreed to accept notices by email, and it is always best to get acknowledgement of receipt.
The tenancy agreement should define agreed methods of service. Section 196 of the Law of Property Act 1925 allows for valid service of notices to be made by registered post, recorded delivery, or personal delivery to the tenant's property. Bear in mind tenants may refuse to accept recorded delivery letters.
Tenants will sometimes deny they received the notice. For this reason it is important for landlords to keep copies and proof of postage for all correspondence, or deliver the notice in person.
If the Section 21 notice is not valid because the following rules were not complied with, tenants could have a defence against possession proceedings so it’s important to make sure you’ve followed the correct process when evicting a tenant. The eviction process requires that certain documents are served before or at the start of the tenancy.
To legally evict your tenant, you need to comply with the following rules:
It is not specified that the landlord / agent must provide an Electrical Installation Condition Report (EICR) for a Section 21 possession claim but it must be in place and it’s probably a good idea to do so.
Where the notice has been served correctly and the landlord has complied with these rules, if the tenant refuses to leave the landlord may start the eviction process. A court order (possession order) application is needed to remove the tenant. Only a court bailiff can legally forcibly remove a tenant.
A statutory periodic AST is usually monthly and the landlord must give at least two months’ notice.
Where the periodic AST is contractual, the landlord should follow the agreed stipulations in the letting agreement.
For some older tenancies this notice must expire on the last day of a tenancy period. For example, if a rent period runs from the 2nd to the 1st of every month, the end of tenancy date stated in the notice must be 1st of whatever month. Note, the rent period is from when the tenancy started (date in the agreement), which is not necessarily the rent payment date.
Under Section 21, the landlord / agent submits a claim form (N5B) along with all the evidence needed to show compliance with the rules, to the county court, or using the Possession Claim Online government website, but only when the notice has expired. The court sends a copy of the claim form to the tenant, who then has 14 days to reply to the claim. Tenants can file a defence, but under Section 21 they are limited as to what constitutes a defence.
Some tenants seek an extension of time in which they have to vacate. The maximum extension a judge can grant is 42 days from the date of making the order. If no defence is filed, it is likely a possession order will be made out – no need for a court hearing. It can take approximately eight weeks to receive the order for possession, depending on the workload of the court. Claims under Section 21 do not enable a landlord to claim for arrears of rent.
Once a possession order has been made out by the court the tenant/s should vacate the property, but failing this the landlord must apply to have the court bailiff remove the tenant. This entails another fee and another wait for vacant possession.
Situations sometimes arise where the landlord / agent needs to evict a tenant during the fixed term of the tenancy – often for rent arrears – in which case Section 21 cannot be used.
The tenancy agreement should have provision for this eventuality and the landlord / agent can seek possession using Section 8 of the Housing Act 1988 under Section 2. There is one exception - if there is a break clause in the contract this could be exercised and then Section 21 can be used.
There is often confusion here. Section 8 should be served in circumstances when a tenant is in breach of contract. So long as the landlord has a legitimate ground or grounds for possession, as set out in Section 2 of the Act, they can serve a Section 8 notice at any point during the tenancy.
There are 17 grounds for possession under Section 2 - some of these are mandatory, where the court must order a possession if proven, while others are discretionary, where the judge decides.
The most common reason for landlords evicting their tenants is rent arrears, and this comes under one or more of the mandatory grounds. Tenants must be a minimum of two months’ in arrears before notice can be served and before the landlord can apply for a possession order. An important point to remember however is that if the landlord pursues the tenant to court, which involves a court fee, and the tenant pays off enough of the arrears to bring them below two months equivalent, the landlord may well not get the order that helps them evict as quickly as possible.
Documentary evidence is key in the case of Section 8. Whether this be bank statements and standing orders to show the tenant is in arrears, or witness statements and criminal reports in the case of anti-social behaviour, the judge will want to see these before issuing an order. In rent arrears cases a very clear rent schedule is paramount, and in other cases, particularly for anti-social behaviour, witness statements or witness attendance may be necessary.
A Section 8 notice of usually 14 days is served on the tenant by the landlord or agent seeking possession of the property, when there has been a breach of the contract, using the correct notice.
In step two, if the tenant fails to respond or vacate, the landlord applies to the court for a hearing before a judge using the particulars of claim form (N119). The landlord will be required to attend the hearing if it goes to court, or appoint an agent or solicitor to attend on their behalf.
The court will send the tenant details of the possession claim and details of the grounds on which possession is being sought. The tenant at this point can file a defence or even a counterclaim. There is a risk here as counter claims may entail extended legal processes running up costs, which is why Section 21 is usually preferred.
If there is a hearing the landlord, agent or solicitor must be fully familiar with the tenancy and have all relevant facts and documentary evidence to hand, including the tenancy agreement, an up to date schedule of arrears, or other relevant evidence supporting the claim.
If the claim is successful, the judge will usually grant a possession order; this means the tenant has a limited time to vacate unless it is granted an extension of up to 42 days. In the event the tenant does not vacate at the required time, the landlord will be required to apply to the court again for a bailiff to carry out the eviction. In addition, a judgement for the arrears of rent may also be granted, at which point a landlord may also make a claim for interest and costs.
All of this draws out the time it takes to complete an eviction, often in excess of four to six months, and with difficult tenants it can be delayed much further, especially if more hearing dates must be set, for example if expert witness reports are needed.
Landlords should avoid having heated arguments with their tenants during eviction disputes. Harassment is a criminal offence under the Protection from Eviction Act 1977. It is sometimes prudent to let an agent deal directly with a troublesome tenant for this reason, or simply deal through correspondence, being careful not to use threatening language.
It’s a good idea to keep a diary of events, phone calls, emails and written correspondence with your tenant/s when in a dispute, as this will form the basis of your case evidence.
Unless you’re confident handling the case yourself in court we recommend that you use the services of a reputable eviction specialist who is regulated by the Solicitors Regulation Authority. Total Landlord’s partner, Landlord Action, is one of the UK’s best known eviction and housing law specialists and regularly takes on cases that have been thrown out of court because the original documents had errors or were filed incorrectly.
The goal of any landlord is to get their property back as quickly as possible and even the tiniest compliance mistake can be costly both in time and money, so using a professional is usually the preferred option.
Paul Shamplina, Founder of Landlord Action, who originated the three-step fixed fee eviction process, has been in the eviction business for over 25 years helping thousands of landlords with their problem tenants.
Here, Paul offers his tips on the right way to go about evicting an unwanted tenant.
Mediation is where an impartial person who won’t take sides helps to agree a solution that works for all parties by listening to what both parties have to say. Total Landlord’s partner, The Property Redress Scheme Tenancy Mediation Service, can help landlords (or their agents) agree a solution to a dispute with their tenant(s) about tenancy related issues. These issues could relate to rent payments and arrears, or other issues that have arisen during the tenancy.
Mediation brings both common sense and expertise to find solutions that work for both landlords and tenants and is usually cheaper and quicker than going to court, with disputes being solved within, on average, 5-10 working days.
It’s cost-effective too – parts of the process are free, and currently, costs that do apply are limited to:
Contact Landlord Action’s team of solicitors and legal advisers on 0371 454 2658 or visit the website for more information.
For more information on evictions and navigating a successful tenancy, download our evictions episode of The Property Cast with special guest Paul Sowerbutts, Head of Legal at Landlord Action, who explains the current eviction process, how landlords can avoid the common pitfalls, and the implications for landlords and tenancies of scrapping Section 21 and changing Section 8.
This article applies primarily to England and is not a full interpretation of the law, which only the courts can decide. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.