03 October 2013
Evicting a tenant
Evicting a tenant (either because they haven’t paid rent or because the contractual term of the tenancy is over) is something that most residential landlords will face at some point. To minimise delay and loss of rent, it is important that a landlord is clear about the type of tenancy that has been granted and the correct way of terminating it.
Assured Shorthold Tenancies
Almost all residential tenancies entered into since 1997 are Assured Shorthold Tenancies. These are relatively easy to terminate and there are two main circumstances when a landlord will do so, which are:
1. The contractual term of the tenancy has expired and the tenant hasn't left; or
2. The tenant is in rent arrears.
End of contractual term
If the contractual term of a tenancy has expired (eg the six month fixed period has expired) it will continue indefinitely on a periodical basis (usually from month to month) until the landlord serves a Section 21 notice.
The Section 21 notice must give a minimum period of two months requiring a tenant to vacate a property. There are different forms of notice depending on whether it is served during the fixed term or once the fixed term has expired. To ensure a Section 21 notice is valid, it is essential that a landlord has complied with the requirements of the Tenant Deposit Scheme. Failure to do so will mean that the notice is invalid.
Once a Section 21 notice has expired, a tenant should vacate the property. However, many do not and, at that stage, a landlord’s only option is to make an application to the court seeking possession. In these circumstances, a landlord can use the accelerated possession scheme - this is a very quick scheme and should mean the landlord can get a possession order without the need for anybody to attend a court hearing.
If a tenant has stopped paying rent, there is no need to wait until the contractual term of the tenancy has expired. A landlord can terminate the tenancy during the middle of the term.
To do so a Section 8 notice must be served setting out the rent arrears and requiring the tenant to either pay or vacate within two weeks, failing which proceedings can be issued.
Some tenants will vacate a property once a Section 8 notice has been served to avoid further action. However, many tenants do not and in those circumstances, it is necessary for the landlord to make a court application. The accelerated procedure is not available in these circumstances and a landlord (or their representative) will need to attend a court hearing. At the hearing, a landlord can apply for a possession order, a judgment for rent arrears (plus interest) and costs.
In both cases a possession order can only be enforced by court bailiffs if a property is not vacated. In particular, the Protection from Eviction Act 1977 makes it a criminal offence to try and evict a tenant. It is essential that proper advice is sought at an early stage.
Other forms of tenancy
Although most modern residential tenancies are Assured Shorthold Tenancies, there are a number of other forms of occupation including Assured Tenancies (which were usually entered into before 1997), Rent Act Protected Tenancies (which were usually entered into before 1989), Service Licences (where employees rent from an employer), various Agricultural Tenancies (where the tenancy is connected with agricultural work), Common Law Tenancies (which include various high or low value tenancies) and various forms of Licences (where the landlord lives with a lodger).
Each different type of tenancy has different methods of termination. Consequently the landlord should establish what type of tenancy exists before taking any steps to try and terminate it.
The property litigation team at B P Collins LLP has both the knowledge and skill set to assist you in the different processes of evicting a tenant. For help and advice please contact associate solicitor Gemma Clark at firstname.lastname@example.org or call 01753 279035.