Top tips for evicting an unwanted tenant
As the buy-to-let industry has grown, so too have the many rules and regulations involved with letting a property.
Keeping up with changes in legislation has never been more important, as failure to comply can impact a landlord’s ability to evict a tenant when things go wrong.
Here are the right ways to go about evicting an unwanted tenant…
Landlords can wish to evict their tenants for all sorts of reasons, but it is a criminal offence for a landlord to evict a tenant without the correct legal procedures in place.
An assured shorthold tenancy (AST) can be terminated principally by reliance on fair grounds for eviction laid out in a Section 21 notice or Section 8 notice, either mandatory or discretionary, of the Housing Act 1988.
Section 21 – When the landlord just wants the property back
The most straight-forward ground for eviction is simply that a landlord wishes to regain possession of their property when the tenancy has ended. When evicting a tenant under a ‘no fault’ Section 21 procedure, a landlord does not have to give a reason.
Quite often, landlords are forced to issue Section 21 notices so that tenants can be re-housed by their local council. Other reasons might be that the landlord wishes to sell the property, move back in or renovate the property.
In this instance, a Section 21 notice (notice to quit) must be served two months before the end of the tenancy agreement.
If the agreement has rolled onto a periodic tenancy – i.e. the tenants have remained in the property beyond the current tenancy agreement – notice can be served at any time which gives two months’ notice, but must expire on the last day of the rental period.
Tenants do have more defences against Section 21 notices now as a result of the Deregulation Act 2015.
Section 8 – Wishing to evict during a fixed-term
A landlord may wish to evict a tenant during a fixed-term, but in order to do so they must have a valid reason.
Grounds under Section 8 are divided into two categories: mandatory and discretionary.
A mandatory ground for possession means that if the court finds in the landlord’s favour, then they must evict the tenant. Whereas, even if the court finds a discretionary ground to be sufficiently proved, it does not automatically mean that the tenant will be evicted – it is up to the discretion of the court.
The most common cause for landlords to evict their tenants is rent arrears.
However, tenants must have fallen behind with a minimum of two months’ rent before action can be taken. If tenants are behind with rent, landlords need to serve them with a Section 8 notice, under ground 8 of the Housing Act.
When tenants fail to communicate properly in an arrears situation, the landlord is left with no option but to take action. The first step is for a landlord to give a tenant written notice of his/her desire for them to leave.
Discretionary grounds under Section 8 are less commonly used and landlords must supply written witness statements.
Examples include breach of tenancy, anti-social behaviour, tenants causing damage to the condition of the property or, sub-letting the property.
TIP NUMBER 1 – SERVE PRESCRIBED INFORMATION & PROTECT YOUR TENANTS DEPOSIT – Landlords cannot serve a Section 21 notice if they have not protected their tenant’s deposit in one of the government backed schemes, so always make sure you do this at the start of the tenancy in addition to providing tenants with an EPC, a Gas Safety Certificate and a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’. You must also be compliant with The Deregulation Act 2015 and if applicable, hold a valid HMO licence.
TIP NUMBER 2 – COMMUNICATION TRAIL – Always keep a record of communication between you and your tenant, and if you have a phone call to discuss any issues, such as late payments or anti-social behaviour, follow this up in writing via letter or email. This could be used as evidence at court.
TIP NUMBER 3 – MAKE CONTACT – If you have a reason to evict your tenant, such as rent arrears, always try to make contact first to see if you can reach a resolution. Sometimes tenants default through no fault of their own and communication can help to solve the problem before it is taken any further.
TIP NUMBER 4 – AVOID ‘LANDLORD RAGE’ – 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.
TIP NUMBER 5 – INSTRUCT LEGAL PROFESSIONALS – Landlords or letting agents can draw up and serve the notice themselves but if this is not something you have done before, it is advised to instruct legal professionals who specialise in eviction and who are regulated by the Solicitors Regulation Authority. Even the slightest error in the details of the notice can cause a court to throw a case out, meaning the whole process would have to start again which is costly both in time and financially.
Blog written by Paul Shamplina from Landlord Action