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Do’s and Don’ts for Evicting Tenants

Jacqueline Penfold
Jacqueline Penfold
Hart Reade

Evicting tenants (particularly problem tenants) can be a daunting process; it can also be a costly one if you get it wrong.  No matter how frustrating your tenant is, you must resist the urge to change the locks and throw them out.  Tenants are protected by law and if you simply throw them out you are likely to end up in trouble and could end up paying the tenant money.  We set out below some “Do’s and Don’ts” which you should bear in mind when you are considering evicting a tenant.

As the majority of modern tenancies are assured shorthold tenancies this article assumes your tenant is an assured shorthold tenant.

DO:

Talk to your tenant

It is always preferable to resolve disputes without the need for court action.  See if you can reach an agreement with your tenant in the first instance or help them come up with a plan for repaying any rent arrears.  Make sure any agreement reached is recorded in writing.

Your tenant should be in no doubt of the seriousness of the problem and they will risk losing their home if matters are not resolved.

Have A Plan And Consider Which Procedure You Will Use To Evict Your Tenant

If talking to your tenant does not resolve matters then you need to follow a formal court procedure to get your property back. Failure to do so will render you liable to a claim for unlawful eviction.

There are two main procedures for evicting a tenant; the Section 21 procedure (also known as the accelerated possession procedure) and the Section 8 procedure.

In broad terms, the Section 21 procedure only allows you to get your property back either at the end of the fixed term or after the fixed term has expired.  This is the easier of the procedures as you do not have to prove fault on the part of the tenant.  You can only use this procedure if you have a written agreement and have complied with the deposit protection rules.  The procedure involves serving a written notice on the tenant giving them two months to vacate the property.  The notice cannot expire before the end of the fixed term.  If the tenant does not leave by the date specified in your notice you must then apply to the court for an order for possession using an “accelerated procedure” (although don’t let the name fool you as it still takes time to obtain an order for possession).

The Section 8 procedure can be used at any time including during the fixed term.  It is a fault based procedure.  You have to prove the tenant is at fault, e.g. they are in rent arrears.  You do not need a written agreement to use this procedure.  It involves serving a notice on the tenant saying how they are at fault and giving them an opportunity to correct the breach.  If they do not do so, then you can apply to the court using the “standard procedure” to obtain an order for possession.

Serve A Formal Notice On Your Tenant – Make Sure Your Notice Is Valid

Once you have decided which procedure to use you should serve the appropriate notice.  This will either be a Section 8 notice or a Section 21 notice but sometimes it is appropriate to serve both notices.  It is vital to take the time to carefully prepare the notices and ensure the dates specified are correct.  A Section 8 notice must be in a prescribed form and contain certain information.  There is a formula for calculating the date in a Section 21 notice.  Section 21 notices are notoriously difficult to get right.

If your notice is defective this is likely to be fatal to your claim for possession.  The error may only come to light at court and you may have to start the whole process again and serve a fresh notice wasting both time and money.  You also need to prove the notice has been served on your tenant.  Often tricky tenants can deny receiving the notice.  We therefore recommend notices are personally served on the tenant so there can be no dispute about this at a later date.

Follow The Court Procedure If Your Tenant Does Not Vacate

If your tenant does not leave by the date specified in your notice or has not remedied the breach, e.g. paid the arrears, the next step is for you to issue court proceedings for an order for possession.  It is a criminal offence to evict a tenant of residential property without an order for possession.

DON’T:

Change The Locks/Throw Your Tenant Out

Changing the locks when the tenant has not vacated is a criminal offence for which you could be prosecuted.  Your tenant can also bring a claim against you for compensation for unlawful eviction.  Unfortunately plenty of tenants do bring these types of claims.

Wait Too Long

It takes time to go through the procedures to obtain possession.  If you have tenants causing damage, being a nuisance or not paying rent do not wait too long before commencing the eviction process – get on and serve your notices.  Delay can mean you lose more rent.  It can take anything from two weeks to six months to get a tenant out.

Fall Foul Of The Deposit Protection Rules

Deposits must be protected in a statutory deposit scheme and certain information (called prescribed information) must be given to a tenant.

If you fail to protect your tenant’s deposit and serve the prescribed information you could end up being sued by your tenant for the return of the deposit and compensation of up to three times the deposit amount.  In addition you could be prevented from using the Section 21 procedure.

Breach Your Obligations

It might be tempting where a tenant is failing to pay the rent to refuse to meet your obligations as a landlord.  However, tenants can defend Section 8 proceedings (particularly those based on rent arrears) by claiming the landlord has failed to meet their obligations. Steps should therefore be taken to minimise the risk of such a defence being successful.

If you would like any further advice on how to evict a tenant please contact  Jacqueline Penfold of Hart Reade Solicitors on 01323 727321 or email at jpenfold@hartreade.co.uk .