Ask any landlord or lettings agent nowadays about their greatest gripe and it probably won’t be voids or dissatisfaction with rental levels – it will be the difficulty of dealing with disruptive or non-paying tenants. The evictions process has always been lengthy – quite right, too, when someone’s home is at stake – but things seem to be getting worse lately. New regulations will come into force later this year; they’re aimed at preventing retaliatory evictions by rogue landlords, for instance where a tenant has complained about a property in disrepair, but for many landlords, they represent another load of paperwork.
The quickest case we’ve seen is where we served notice and the tenants moved out three days later.”
The length of time the process takes can vary, depending on various factors. Paul Shamplina, founder of Landlord Action, says the main factor is how obstinate the tenant wants to be. On average, he says, from serving the eviction notice to obtaining a possession order takes between four and five months if the case is undefended.
However, he points out that in 61 per cent of cases that Landlord Action handles, the tenants vacate the property once they’re served with a Section 8 (rent arrears, 14 days) or Section 21 (two months) notice. “The quickest case we have ever seen,” he says, “was where we served notice and the tenants moved out three days later.” By contrast, the slowest cases can take nearly a year and a half, though such lengthy cases are very rare – usually “where the case has been defended, claimed and counter-claimed and ends up running to a full length trial,” he explains.
It doesn’t stop once the courtroom action is over, either. Delays in enforcement have become increasingly common. The Sheriff’s Office, a company that works as a registered High Court Enforcement Officer, says that significant cuts in the courts service have led to major delays in enforcing possession orders. The delays can range from six to 16 weeks, and at one court, delays are as long as six months – during which time the landlord may not be receiving any rent at all.
WHY LANDLORDS EVICT TENANTS
It’s interesting to consider the reasons that landlords serve notice. They are not frivolous; according to a Landlord Action survey, the commonest reason is rent arrears, accounting for 28 per cent of cases. Commercial reasons were also common, with 15 per cent wanting to sell up as property prices rose, and 11 per cent wanting to relet at a higher rent; and 13 per cent of landlords needed to move back into the property, a surprisingly high number but one that reflects the number of accidental and expatriate landlords in the private rented sector. (In a significant minority of cases, tenants actually requested eviction, so that they could ask to be re-housed by the local council.)
Landlords and lettings agents don’t always make it easy for themselves. For instance, landlords frequently fail to put the tenant’s deposit in one of the three deposit schemes; it’s only when they try to evict the tenant that they find out this is a problem in putting together their case. Landlords with HMOs also need to ensure they comply with the latest HMO licensing regulations – many don’t, Paul Shamplina says, and again, it’s often when they serve notice that they find themselves stymied.
Getting your legal position right starts at the beginning of a tenancy – not when you decide to evict the tenant.”
Another very common mistake, though, is serving the wrong notice. The most common mistakes are incorrect expiry dates for the tenancy, inaccurate schedules of rent arrears, and simple typing errors, Paul Shamplina says. Sometimes landlords and agents simply haven’t kept adequate records – a pointer to the extreme importance of maintaining an auditable paper trail.
Such mistakes often stall the process, and so Landlord Action ends up “taking over many cases where file proceedings have been drafted incorrectly either by the agent, the landlords or an unregulated eviction firm, and they need assistance in getting back on track.”
THE TENANT’S GAME
Some tenants do try to play the system. Paul Shamplina says this often results in surprises for the landlord, since they usually delays the process “by filing fictitious defences at court which have never previously been mentioned, such as claiming there are disrepair issues at the property.” Some use the resource of a duty solicitor at court to get an adjournment and delay the process further. He is concerned that changes to the Deregulation Bill, due to come into force later this year, may give tenants a greater opportunity to play the system.
In the case of counter-claims, again good record keeping is important. A lettings agent with a robust system for recording tenants’ maintenance requests and action taken to address them, for instance, will be able to fight its corner against a tenant alleging that the property was uninhabitable than one which relies on post-it notes and SMS.
SPEEDING UP THE PROCESS
Fast tracking the system is possible by asking for a transfer to the High Court. But it’s not as easy as some reports suggest, Paul Shamplina says. Leave to transfer is at the discretion of the judge. Landlord Action asks for cases to be transferred at all of its hearings, but only 16.5 per cent of its requests have been granted so far this year. And of course there is an extra cost, which can vary from an extra £400-1000.
Even having gained an eviction order, landlords face further delays with enforcement. Tenants can ignore the possession order granted by the court (normally a 14 day order). Sometimes local councils advise them to stay put. In these cases, the landlord needs to apply for an eviction date with the bailiff. This can take between 5-10 weeks depending on the court and how many bailiffs there are, Paul Shamplina says.
Using a High Court Enforcement Officer (HCEO) can prove a useful shortcut. An HCEO can carry out an eviction within days. Even though transfer from the county court to the high court can take nearly a month, that’s still a net saving and in some areas can be very significant, The Sheriff’s Office points out.
HCEOs can also apply to recover monies owing. But landlords need to think through their tactics, The Sheriff’s Office advises. HCEOs don’t have to give notice of an eviction, an advantage over county court bailiffs who have to give warning. That can be useful when dealing with difficult tenants. But they do have to give seven days notice of intent to recover money. That gives the tenant warning of the eviction – something a landlord might want to avoid in the case of tenants thought likely to damage the property.
Many landlords and lettings agents handle their eviction notices themselves rather than using a lawyer. Obviously, that can save money, but if mistakes are made at that stage of the process, it can cost far more later, both in legal fees, and in unpaid rent – even, in the worst cases, in damage to the property. Paul Shamplina believes they should seek help from a regulated legal firm with good experience dealing with evictions. And he warns: “We come across a lot of landlords who have procrastinated with the decision as to whether to call in professional help. In the case of rent arrears, landlords must make the decision for themselves whether a tenant is stringing them along or actually can’t afford the rent but the longer it is left unresolved, the more the landlord stands to lose.”
GETTING IT RIGHT
Landlords need to be careful about who they use. They can find themselves in hot water if they use an unregulated firm for enforcement, for instance. Some firms have been advising them to use HCEOs for standard writs of possession. While HCEOs can enforce such writs, they can only do so against trespassers (squatters), not against tenants – and any attempt to evict a tenant unlawfully exposes the landlord to significant extra costs and major delays.
Using a general solicitor without strong experience in the residential property sector can also lead to problems. Regulations in this area are continually changing, and look likely to continue to change. That’s where firms focused on tenancy law have a real edge.
As more and more households are forced to rent, it’s unlikely any government will risk reducing tenants’ protection – even the Conservative party as talked about longer lease terms and enhanced tenants’ rights. The eviction process is certainly not going to get any easier for landlords – so what counts is getting your legal i’s dotted and t’s crossed. And as Paul Shamplina points out, that starts right at the beginning of the tenancy – not when the decision to evict a tenant is taken.