Help – how do I evict my tenants
A couple of weeks ago, I blogged about retaliatory evictions by landlords. But there may come a time in your career as a landlord when you genuinely need to evict your tenants.
There are strict rules about how to do so and which procedure you use will depend on the particular circumstances of your tenant and tenancy.
You may have heard all sorts of horror stories about evictions. However, although it’s not an overnight process, provided you comply with the rules, it should be reasonably straightforward.
Which procedure do I need to follow?
This will depend on the type of tenancy agreement you have in place. The most common type is an assured shorthold tenancy. These are either periodic tenancies which run from month to month (or week to week) or fixed term tenancies which run for example, for a period of 6 months or a year (but it could be longer). If you’re in any doubt about what type of tenancy you have in place, you should check with a professional.
Having established what type of tenancy you have, you must follow the procedure which applies to your tenant:
I want my property back when the current tenancy agreement comes to an end
In these circumstances, you will need to follow what is known as the Section 21 notice procedure. If the tenancy started after April 2007, you can only use a Section 21 notice if you put the tenant’s deposit in a deposit protection scheme.
Using this procedure, you cannot evict until any fixed term tenancy has ended and you must give two months’ notice. However, exactly how much notice you need to give will also depend on the rental period as the notice period must end on the last day of the rental period. This, therefore, could be longer than two months.
The precise form of this notice can vary, but it must be in writing and must specify the date of required possession. It’s very easy to get the date wrong so again, if in doubt, get professional advice. If the tenant doesn’t move out as a result of the Section 21 notice, you’ll have to go to court to seek a possession order.
If your tenants don’t leave by the date set in the Section 21 notice, you can then use the accelerated possession service but only if you are not claiming rent arrears. If you are, you’ll have to apply for a standard possession order.
My tenants have breached the terms of the tenancy and I want my property back
This situation normally applies where the tenant hasn’t paid the rent, is late paying the rent or has sub-let the property in breach of the tenancy. You will need to follow what is known as the Section 8 procedure which allows you to regain possession during the fixed term of your tenancy. But if the reasons you are relying on involve rent arrears, the notice can only be issued after a certain amount of rent is unpaid.
The Section 8 notice procedure requires you to give your tenant between 2 weeks and 2 months’ notice, depending on what terms of the tenancy they have broken. The section 8 notice must be properly completed with the terms you allege have been broken.
Whatever procedure you use, you will need to apply and complete forms at the court in the area in which the property is. You may need to complete a different set of forms depending on when the tenancy was issued.
You will also need to make sure the tenant is given the correct paper work in the correct time frame. This is known as service and again, strict rules apply about how and when you can serve your tenant with the papers and what you have to give them. If you are in any doubt, check with a professional or risk your application being dismissed. You will then need to complete a proof of service document (certificate of service).
You can issue and serve a Section 21 and Section 8 at the same time in respect of the same tenant. However, you must make sure you comply with the different procedural requirements and notice periods of both.
Section 21 and Section 8 are the most common type of evictions but there are exceptions. If you are trying to evict squatters who have entered without your permission and where there is no, and never was, a tenancy agreement in place, there is different, quicker procedure you can use. Again, strict rules apply.
Your tenant lives with you
If your tenant has an excluded tenancy or a licence, the procedure is different and you simply have to serve them “notice to quit” within a reasonable time period. Again, check with a professional if you’re not sure whether this applies to your situation.
Tenancies which began before 27 February 1997 may have additional protection from eviction.
What happens next?
Once you have issued and served the correct notice, the court will fix a hearing date for a judge to decide what should happen. Both you and the tenant may have to file a statement of evidence for this and you or your representative will probably need to attend. Check with the court. It’s important to bear in mind that your case will be dismissed if you haven’t followed the correct procedure.
What can the judge do?
- The judge may make an order for possession requiring your tenant to leave by a set date, usually 14 or 28 days after the court hearing.
If they don’t leave by that date you will need to apply to the court for a ‘warrant for possession’ and an eviction notice will be sent by the court to your tenants. Do not attempt to evict them yourself at this stage. If your tenants still don’t leave your property, you’ll need to arrange for a court bailiff to evict them.
- The judge may make a suspended order for possession, allowing your tenants to stay provided they comply with some set conditions i.e. to pay the rent. If they don’t comply, you will have to return to court.
- The judge may order your tenants to make payments to you (a money order/ judgment). This may be in combination with a possession order and could include rent arrears or legal costs.
A word of caution
It’s a crime to harass or try to force your tenants to leave your property without following the correct procedure. Not only do you risk your application for eviction being dismissed by the court but your tenants may even be able to claim damages from you.
As you can see, evicting tenants is a potentially complex area. The above is only a rough guide and should not be treated as legal advice. I would always recommend you get professional advice and or assistance before you try to evict your tenant.
Perhaps even more important is to make sure that you have all the right paperwork in place when you first grant your tenancy. In that way, you can minimise the risk of anything going wrong and make sure that you’re in a strong position if it does.
Graham Faulkner is Branch Director of EweMove Dorking
He’s bought and sold a lot of properties over the years and is also a portfolio landlord, as well as specialising in helping other landlords. Apart from his own experience and expertise, he can also recommend the right professionals, as tried and tested by him, to advise you.
Multi award winning EweMove in Dorking is a residential property sales and lettings agency who pride themselves on being refreshingly different and standing out from the crowd. EweMove Dorking covers from Ockley to Oxshott.