The growth of buy-to-let and the rapidly maturing ‘generation rent’ has brought many positives to the lettings industry. It has also, naturally, increased the problems that occur when a landlord no longer wants the tenant in his property. So how do you evict a tenant?
Paul Shamplina has been in the eviction business for over 25 years. His company, Landlord Action, originated the three-step fixed fee eviction process, helping thousands of landlords with problem tenants. As the Buy-to-Let industry has grown, so have the many rules and regulations involved. According to Paul, keeping up with changes in legislation, such as that surrounding deposit protection, has never been more important, as failure to comply can seriously impact a landlord’s ability to evict a tenant when things go wrong.
Paul is, therefore, just the man to ask, ‘What is the right way to go about evicting tenants?’
PERIODIC OR FIXED-TERM
If the tenancy is periodic or if the fixed- term has come to an end, landlords can evict fairly easily. There is no need for a landlord to give a reason to the court but they must be able to show that an assured shorthold tenancy was in place and that the correct notice has been served.
- A landlord may wish to evict a tenant during a fixed-term, but to do so they must have a valid reason. The most common reason is rent arrears, but others may include:
- The tenant has broken the terms of the tenancy, such as subletting
- The tenant is consistently late with the rent payment;
- The tenant has damaged the property;
- The tenant has caused nuisance;
- The property is being repossessed.
“When a landlord has a reason to evict a tenant, such as rent arrears, we advise landlords to try to make contact with the tenant to see if they can discuss the issue and come to some agreement, “Sometimes tenants default through no fault of their own and communication can help to solve the problem before it is taken any further,” says Paul.
When tenants fail to communicate properly in an arrears situation, the landlord has no option but to take action. The first step is for the landlord to give a tenant written notice of his/her desire for them to leave.
Serving Notice – Section 8 proceedings
A Section 8 notice is a notice seeking possession, which is served on the tenant when they have breached one or more clauses within the tenancy agreement.
A Section 8 notice is commonly used when the tenant is in arrears of rent. There are 17 Grounds for possession (17 reasons that the law gives for when a Section 8 notice can be issued). Rent arrears being the most popular grounds (Grounds 8,10 & 11 of Section 8 of the Housing Act 1988 as amended 1996).
If a tenant owes a minimum of two months arrears when a notice is served, all three rent related grounds are included within the Section 8 notice (8, 10 & 11). If the tenant fails to clear the arrears and/ or vacate the property when the Section 8 notice expires, then court proceedings are required. The tenant will need to owe at least 2 months rent on the day of the court hearing in order for a landlord to rely on all three grounds for possession.
The court hearing and what it means
Where a claim is for possession and rent arrears (Section 8), there will be a Court hearing before a Judge. The landlord will be required to attend the hearing, or appoint an agent to attend on their behalf. (An agent is a letting agent or somebody appointed to manage the tenanted property on a day-to-day basis for the landlord.) The landlord or agent must be fully conversant with the tenancy and have all relevant paperwork readily available, such as the tenancy agreement and an up to date schedule of arrears at the hearing.
If the tenant clears the arrears prior to the hearing date, then it is unlikely a landlord will get a Possession Order.
If the claim is successful, the Judge usually grants a 14 day Possession Order; this means the tenant has 14 days from the date of the hearing to vacate. In the event the tenant does not vacate, the landlord will be required to appoint a bailiff to carry out the eviction. In addition, a Judgment for the arrears of rent may also be granted at which point a landlord may also make a claim for interest and costs.
Paul says, “If the tenant is at the hearing and pleads exceptional hardship, they may persuade the Judge to grant longer before leaving. The most a Judge can give is 42 days. We always oppose this as we believe the hardship to be in the landlord’s favour.”
If the tenant reduces the arrears to below two months of arrears, the Judge may order a postponed Possession Order (provided grounds 10 & 11 have been included in the Section 8 notice), which means the landlord would get a Possession Order, but the tenant is permitted to stay provided he/she continues to pay the rent each week/month on time and clears the arrears by an agreed and reasonable time. Failure to adhere to the order would mean that the landlord can apply for a Bailiff to execute the warrant of possession i.e. evict the tenant(s).
If a tenant defends the case by, for example, raising a disrepair issue, then proceeding under a Section 8 notice only may see the matter adjourned. “In such cases, we would often recommend serving a Section 21 notice in addition to a Section 8 notice and then only issuing proceedings once the Section 21 notice has expired,” says Paul.
Section 21 proceedings
There are two types of Section 21 notices. One notice is served during the term of the tenancy and one is served when the term of the tenancy has expired.
A Section 21 notice is used when the landlord requires possession of the property. The landlord does not have to give a reason for wanting possession of the property and there does not have to be a breach of the tenancy agreement.
Some tenants use a Possession Order under Section 21 to seek housing assistance from their local housing office. If this is the case, tenants are generally recommended by local authorities to remain in the property until a Possession Order has been granted and bailiffs have been appointed to evict the tenant.
What it means
Where a landlord’s claim is for possession only (Section 21) and he/she uses the Courts’ accelerated procedure, the tenant will have 14 days to file a defence. If no defence is filed, a landlord can apply to the Court for an Order for Possession. It can take approximately 8 weeks to receive the Order for Possession, depending on the workload of the Court. London Courts are extremely busy and may encounter some delay. Claims under accelerated Section 21 do not enable a landlord to claim for arrears of rent.
There are certain circumstances where the accelerated process will not be able to be used. In such circumstances, a court hearing will be required.
Eviction – County Court Bailiff
If a tenant fails to vacate on or before the expiry of the Possession Order (which is usually two to six weeks), a County Court bailiff must be appointed to carry out the final stage, eviction. Applying for a warrant for eviction can mean the process takes a further six weeks. The eviction can only be carried out by a County Court bailiff.
Landlord Action always advises landlords to appoint a locksmith to attend at the same time as the Bailiff in order to assist with entry, if required and to change the locks. A landlord must wait for the bailiff outside the property (on the street), never inside the property, or in a hallway/ lobby. The bailiff will only approach the property if he can see somebody outside.
“It can take a long time to regain possession of a property through the courts, often four to six months, and sometimes difficult tenants can delay matters even further which is why we always encourage landlords to do everything they can to establish contact and resolve issues, where possible, before taking this route.
“We appreciate that this is not always possible and it can be a very frustrating and worrying time for landlords, particularly if they rely on the rental income to pay a mortgage. If this is the case, it is imperative that a landlord acts quickly in order to minimise losses.
“However, the most important thing to remember is to never be tempted to harass the tenant in an attempt to resolve the matter. The penalties for harassment are severe and can result in heavy fines, so always seek professional advice and stick to the correct procedures.”
Paul Shamplina is part of a Government Think Tank “The Speeding Up Evictions Working Group”. The purpose is to provide stakeholders with the opportunity to comment on, shape, and influence DCLG’s (Department for Communities and Local Government) emerging proposals to speed up the eviction process for private landlords. www.landlordaction.co.uk