Evicting Tenants
If you are a Landlord and you are renting out a house or flat on an Assured Shorthold Tenancy (AST) and wish to recover possession of your property there are two main routes that you can take. Eviction is a legal process, and Sections 8 and 21 Housing Act 1988 provide the procedure for a landlord to evict a tenant, who is unwilling to leave a property.
The procedure that you must follow to terminate an AST depends on whether the tenancy was granted for a fixed term or if it is a periodic tenancy. For fixed term tenancies, different procedures apply both during the fixed term and also after it has expired.
There are 3 stages for most private landlords:
- Notice
- Court action
- Eviction by bailiffs
If you proceed to evict your tenant who is in occupation under an AST without obtaining a court order then this will be an illegal eviction.
What is the Section 21 procedure?
The most commonly used procedure is the one outlined in Section 21 of the Housing Act. It is common for private renters to have ASTs, however you will need to be sure this is the case before utilising the Section 21 procedure. You can use the procedure in Section 21 to terminate an AST after a fixed term tenancy ends (if there is a written contract) or during a tenancy with no fixed end date, known as a periodic tenancy. A Section 21 Notice is sometimes referred to as a ‘no fault’ notice, because this process does not require you to prove an element of tenant default to obtain possession. Moreover, unless the tenant provides a valid Defence as to why they should not be evicted then the Courts will usually make an order for possession without having a hearing on the matter.
What is a Section 21 Notice?
The Section 21 Notice starts the process. It will set out to a tenant that they must vacate the property 2 months following the service of the notice. The Section 21 notice should be served 2 months prior to the end of the fixed term or at any time following the end of the fixed term (set out in the tenancy agreement). You have 4 months from the end date on the Section 21 Notice to start Court action if the tenant does not leave the property.
Requirements for the Section 21 procedure
There are various pre-conditions to serving a section 21 notice. These conditions are:
- Where a deposit has been taken from a tenant this must be held in an authorised deposit protection scheme. If it is not then you will not be able to use the Section 21 procedure. Moreover, there is prescribed information that must be given to tenants within 30 days of receipt of the deposit.
- If the property is a house of multiple occupation (HMO) or where the local authority has adopted a selective licensing scheme then it will not be possible to use the Section 21 procedure if you do not have the appropriate license for your tenancy.
- It is a legal requirement for landlords to have an up-to-date Gas Safety Certificates and Energy performance Certificate. These must be kept up to date and provided to the Tenant at the start of the tenancy and following their renewal. Y You will need to ensure that the tenants have been given a copy of all relevant certificates before you send a Section 21 Notice.
- If the tenancy has been granted on or after 1st October 2015 then a Landlord must provide their tenant with the government ‘How to Rent’ information at the start of the tenancy. The Landlord should provide the most up to date copy of this information at the start of the tenancy and the tenancy is renewed and a more recent copy has been published then you will need to provide the most recent copy. You will need to ensure that the tenants have a copy of this guide before you serve the Section 21 Notice.
Court Process
If your tenant stays past the end of the notice then you will need to apply to court in order to get them to leave. You must file with the Court a Claim Form setting out that all the requirements for the Section 21 procedure have been met along with any supporting documentation. If the Court is satisfied with the Claim Form and the documentation then they will issue the claim and send a copy of the Claim Form to the tenant.. The Tenant will then have 14 days to file a Defence.
If no Defence is filed within the 14 days then the landlord is entitled to request an order for possession be made.
What is the Section 8 procedure?
A section 8 notice can be used to evict an Assured Shorthold Tenant or an Assured Tenant.
Using this procedure is not as straightforward as that of Section 21. You need a legal reason or ‘ground’ to use this type of notice and you will have to prove the ground at a court hearing. The most common reason for a private landlord using a Section 8 notice is rent arrears.
When using a section 8 notice the procedure set out in the 1988 Act must be followed. That is:
- The landlord serves a notice of intended possession proceedings on the tenant, using the notice prescribed by section 8 of the 1988 Act.
- The landlord must have appropriate grounds for possession from the list in Schedule 2 of the 1988 Act;
- The Notice must specify the grounds for possession being relied on, list the full text of the grounds being relied on, and set out why the landlord is relying on those grounds;
- The Notice must state the date after which possession proceedings will commence.
In summary, the notice must ensure that a reasonable tenant clearly understands what you are complaining of, what they can do to resolve the situation, and how long they have to make amends. You can commence court action when the notice period ends. The notice expires if you do not start court action within a year of giving you the notice.
The benefit to using the Section 8 procedure is that you are able to make a claim for any arrears of rent, together with an Order for Possession of your property. It will, however, be the case that you will need to attend, at least, one Court hearing – there can be multiple if the tenant defends the possession.
Upcoming changes to the law
On 16th June 2022, the Government published a White Paper entitled ‘A fairer private rented sector’. White papers are policy documents produced by the Government that set out their proposals for future legislation. This is the final stage before the proposals are introduced to Parliament in the form of a Bill.
The paper sets out the government’s long-term vision for a private rented sector (PRS) which includes plans to:
- abolish Section 21 ‘no-fault’ evictions and introduce a simpler tenancy structure
- apply the Decent Homes Standard to the PRS for the first time
- introduce a new Property Portal to help landlords understand their obligations
- introduce a housing ombudsman covering all PRS landlords and providing redress for tenants
The government’s proposals have been described as the biggest shake up of the private rented sector in 30 years with a clear intention of resetting the landlord and tenant relationship. We will be following the advancement of the paper as it progresses to Parliament. If you would like to read the paper in full, you can do so via the link below.
How can we help?
We understand that the process of evicting a tenant can be a stressful process but it is important that you ensure that the various requirements for are met in order to be successful and to avoid an illegal eviction. For advice on how to regain possession of your property and evict your tenants, you can contact Cherise Luke-Bennett at Nantes Solicitors to discuss further.
