- 19th December 2016
- Posted by: Seatons Solicitors
- Category: Articles, Landlords
Here at Seatons Solicitors, we can act for both landlords and tenants, and our team has a variety of experience and knowledge to ensure the best result for you with the minimum inconvenience.
If you have tenants that are causing issues for you or you require possession of the property for your own use there is a procedure that must be carried out. Unfortunately you are unable to simply change the locks and remove the tenant.
Evictions are usually pretty straightforward. There are some simple steps that must be followed – sometimes simply serving notice via a Section 21 is enough however there are tenants that are more difficult to remove from a property.
The Eviction Procedure
If you do not follow the eviction procedure correctly then it is possible that you could be found guilty of harassment or illegally evicting your tenant. If in doubt seek legal advice immediately.
If the tenancy is an Assured Shorthold Tenancy (these are fairly common) with out a fixed end date to regain possession then you will need to serve a Notice to Quit with a date to leave the property. If the tenants do not leave on that date, you must apply to the Court for a Possession Order.
If there is a fixed term in the Assured Shorthold Tenancy, you have to give your tenants notice in a specific way. If the tenants do not leave, you have to apply to the Court for a Possession Order.
It is required to clearly specify at least two months notice under section 21 of the Housing act 1988 if you want to evict your tenant. This is called a Section 21 notice.
It can only be served by a landlord earlier than any fixed term if the tenancy agreement actually makes a provision for it.
The precise form of this notice can vary, but it must be in writing, and must specify the date of required possession.
This date must absolutely not be sooner than two months after the notice has been served. It also cannot be earlier than the end of the fixed term.
If the fixed term has expired, or the tenancy was a periodic tenancy then the date specified must be the very last day of the rental duration.
If you have an excluded tenancy or licence, you don’t have to go to Court to remove the tenant. This is usually if your tenant lives with you in the property. You still have to provide reasonable notice. If the tenant doesn’t leave, you are able to replace the locks on their doors, but there is a strict way of doing things and really shouldn’t be done without first seeking legal advice.
If, after serving a Section 21 notice, the tenant chooses to remain in the property then it is necessary to go to a court and obtain a possession order. Possession orders cannot be made in the first 6 months of a tenancy.
There are several different ways to obtain a Possession Order and each has their own rules. If you satisfy certain criteria, you can do what is known as an accelerated possession which is quicker and doesn’t usually require a Court hearing.
With a non-accelerated possession the process is a little slower and it is highly probable that a Court hearing will take place. The matter surrounding the eviction is usually more complicated.
If the Court issues a Possession Order, the tenants will typically have either 14 or 28 days to vacate the property. This can be increased to 42 days in special circumstances. If the tenant does not leave, you are able to use bailiffs at this point.
If is an assured shorthold tenancy then you will need to have grounds for eviction and to have served the correct notice on the tenant(s) before possession proceedings are initiated.
There are two main mandatory grounds for seeking possession ( Others are available but seldom used )
- Shorthold tenancy - If the tenancy is one which is an assured shorthold tenancy then you are entitled to a possession order after the fixed term has expired, providing the proper Section 21 notice has been served.
- Rent arrears - If there are serious rent arrears at the time of the Section 8 notice being served and at the time of the court hearing, the tenant is in arrears of rent of more than eight weeks.
A Section 8 notice means requirement of possession because of rent arrears.
- Accelerated possession procedure
You can also choose to go for an accelerated possession procedure.
The accelerated possession proceeding is a much faster way to gain possession as there isn’t a court hearing but you will need to pay a fee before any action takes place.
For accelerated possession you need to go to the County Court for the area where the property is situated and then fill in a Form N5B claim for possession (accelerate procedure) which is obtainable from the HM Courts service.
The court will then normally post the papers out to the tenant, along with a form of reply which will permit them to submit an objection within 14 days, if they desire.
If the accelerate procedure application is successful, you will get an order for possession (typically this is enforceable 14 days after the order was made by the court) and also an order that the tenant pay the court fee.
A reasonable timeframe for this to happen from the issue of proceedings to receipt of the possession order takes from six to ten weeks on average as long as there are no obstacles or problems along the way.
Serving a notice. What if I get no answer?
Sometimes tenants will attempt to obstruct the procedure or go into hiding to avoid having the notice served to them. You do not need to physically see the tenant to serve the notice. Simply attend with a witness and place the notice through the letterbox of the property before 5pm and it will be classed as served on the next day.
If you would prefer not to do this, perhaps you have a confrontational or aggressive tenant, then you can employ the services of a professional process server. The server will supply you with a certificate of service that a judge will accept as conclusive evidence of service.
For more tips on evicting tenants, see our 10 tips for evicting tenants here.
As always, the information above is only a general guideline. Your case is specific to you and we would encourage any landlord to seek full legal advice to ensure there are no problems with a tenant eviction.
We are experts at evicting tenants and our skilled Landlord services team can help to ensure that your property is cleared of tenants efficiently and professionally. Call us free on 0800 3 10 11 12 for specialist advice.