Notices seeking possession and Eviction Process
Looking to evict a tenant and do not know where to start? This guide will give you a comprehensive overview of the eviction process.
The first decision you, as the landlord or managing agent, will have to make is whether to serve a Notice pursuant to Section 21 of the Housing Act 1988 (commonly known as a Section 21 notice) or a notice pursuant to Section 8 of the Housing Act 1988 (commonly known as a Section 8 notice). We will first look at a section 8 notice.
There are 17 grounds that can be used for the Section 8 notice which can be found here. Grounds 1-8 are mandatory grounds and grounds 10-17 are at the Court’s discretion. Therefore, it is important to read through each ground and see if any of these 17 grounds apply to you and your tenant. When relying on a section 8 notice, you must use the prescribed form, Form 3. The notice period that you must give the tenant depends entirely on the grounds that you are relying on. Grounds 1,2,5,6,7,9, and 16 require 2 months’ notice. Grounds 3,4,8,10,11,12,13,14,15 and 17 require 2 weeks with a few exceptional circumstances.
A section 21 notice does not rely on any grounds and can, sometimes, be the only option to get your property back. The likelihood of you gaining possession will depend entirely on your history as a landlord or managing agent. Before serving a Section 21 notice you must have done these four things.
1. Given a copy of the How to Rent Guide to the tenant which complies with the Regulation 3 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“Prescribed Requirements”). More information on the How to Rent Guide can be found here . It is important to note that you can only send the How to Rent Guide to the tenant via email with prior written consent from the tenant.
2. Given a copy of the Gas Safety Certificate to the tenant for each year the tenant is in occupation starting from the commencement of the tenancy. A discussion surrounding Gas Safety Certificates and the important case of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ can be found here (hyperlink to Leons article).
3. You must have given a copy of the property’s Energy Performance Certificate (“EPC”) to the tenant prior at the commencement of the tenancy or prior to serving the Section 21 notice.
4. You must comply with the necessary requirements in relation to a deposit. These include, providing a copy of the prescribed information in line with The Housing (tenancy Deposits) (Prescribed Information) Order 2007. The deposit must be protected in one of 3 Government schemes which are: ‘MyDeposits’ ‘TDS’ or ‘DPS’ within 30 days of receipt.
When serving a Section 21 notice, you must use the prescribed form (Form 6a) and give the tenant at least 2 months’ notice. The notice period is from the deemed date of service to the date specified in section 2 of the prescribed form.
If all above steps have been complied with, then the Court should make a mandatory possession order in 14 days. Beware, the tenant can file a defence to delay the eviction process. Generally, the most common defence used in section 21 claims is that of ‘exceptional hardship’. If the court makes a finding of exceptional hardship, the Judge can only postpone the possession order by no later than 6 weeks after making the order. This provision can be found here.
Legal proceedings
If you are relying on a section 21 notice and there are no rent arrears and the property is located wholly or partly in England, then it is best you use the accelerated procedure found here. If the property is located wholly in Wales then you need to use the form found here. Once the Court has read the application, they will issue the Claim and allow the tenant 14 days to respond to the Claim for Possession. If no response is made or no valid defence is raised by the tenant, then the Court will make an order for possession in 14 days. After this, the only remaining step is to instruct bailiffs.
When relying on either notice and wanting to make a claim for rent arrears, you will be required to complete the claim form (form n5) found here. Once the Court considers this application for possession, the matter will be listed for a hearing. At this hearing, the Court will consider the strength of your claim against any defence raised by the tenant. The Court will often do one of three things; 1. adjourn the hearing to hear further evidence on another day, 2. dismiss the possession hearing, or 3. award possession. The Court does have other options as well. It is best to have an advocate at the hearing in order to best put your case forward and deal with any unforeseen issues that may arise.
If you are relying on grounds 8,10 or 11, you can use the online Possession claims portal (PCOL) which can be found here. This often simplifies and expedites the process.
Once possession is awarded, bailiffs need to be instructed. Applications for a bailiff can be found here. They will attend the property and remove the tenant. It is important to note that only the bailiffs can remove a tenant. Removing the tenant using any other method can create an unlawful eviction which could lead to a claim against the landlord for damages.
It is important to attend the bailiff appointment in order to be able to change the locks and stop the tenant from returning to the property. If any of the tenant’s possessions are left in the property, then a Tort notice is required.
Having issues understanding the above, then our dedicated legal team will be happy to assist with all your enquiries as a landlord or managing agent.
By Matthew Andruchow
Disclaimer: The content of any article posted on this website is for general information only and shall not be deemed to be, or constitute legal advice on any general or specific matter.