- How to Evict A Tenant
A landlord should decide the basis upon which they wish to recover the property from the tenants. Are the tenants ‘problem tenants’ and in breach of the terms of the tenancy agreement (usually due to rent arrears) or has the term of the tenancy agreement expired?
In the event that the tenants are in breach of the terms of the tenancy agreement, it is normally advisable to send a section 8 notice. If the tenants are not in breach of the terms of the tenancy agreement but the term of the tenancy agreement has expired, it is normally advisable to send a section 21 notice. In some cases, landlords will send both types of notice in order to give them greater protection.
- Section 8
A section 8 notice is sent to tenants who are in breach of the terms of the tenancy agreement (normally for none, or late, payment of rent). A section 8 notice can be served irrespective of whether the term of the tenancy agreement has expired. The section 8 notice must list which of the mandatory and/or discretionary grounds the landlord relies on.
There are eight mandatory grounds, or reasons, which a landlord (where applicable) can rely upon when sending a section 8 notice. If any of the grounds are proven at court, the judge must make an order for possession. For example, in order to prove ground eight, a landlord must show that there was at least two months of rent arrears at the time that the section 8 notice was sent and at the date of the hearing.
There are ten discretionary grounds, or reasons, which a landlord (where applicable) can rely upon when sending a section 8 notice. If any of the grounds are proven at court, the judge can decide to make an order for possession. For example, grounds ten and eleven relate to none, or late, payment of rent.
When deciding whether to order possession on discretionary grounds, a judge will typically consider –
- The circumstances of both the landlord and the tenants.Financial considerations.
- Professional considerations.
- Social considerations.
- Perceived hardship.
- Instances of harassment caused by either the landlord and/or the tenants.
- The detriment that would be suffered by both parties.
Provided they apply, a landlord may rely on as many mandatory and/or discretionary grounds as they wish and often do so in order to strengthen any claim for possession.
- Section 21
A section 21 notice is sent to tenants in order to bring the tenancy agreement to an end. There does not need to have been a breach but a tenancy agreement cannot be brought to an end this way before the expiry of the fixed term of the tenancy agreement. The wording of the notice that should be sent varies dependent on whether the notice is being sent during the fixed term of the tenancy agreement or after (when the tenancy agreement will have become a ‘periodic tenancy’) and will give two months’ notice to the tenants to leave.
Once the time period given in the section 21 notice has expired, and if the tenants have not left, the landlord can apply to the court for a possession order which a judge must make.
When enforcing a section 21 notice through the courts, a landlord can opt for one of two court procedures, the accelerated possession procedure or a standard claim for possession.
The Accelerate Possession Procedure
An application for possession is made to the court. No court hearing is involved unless the tenants dispute the claim or the judge finds an error in the paperwork. There is, generally, no defence available to the tenants if the paperwork is in order but tenants can ask the court for more time to leave the property up to a maximum of forty-two days.
This is a quicker procedure for recovering possession, however, it is not possible to claim for rent arrears or any other sums owed. A certain amount of legal costs can be recovered.
The Standard Claim for Possession
An application for possession is made to the court and the claim is listed for a court hearing. At the hearing, the judge can make an order for possession and order that the tenants pay any rent arrears and charges for their occupation until possession is taken.
This is a slower procedure for recovering possession because a court hearing is necessary, however, it is possible to claim for rent arrears or any other sums owed. A certain amount of legal costs can be recovered.