To evict a tenant, you must follow the correct legal rules and procedures or you may find yourself facing prosecution for illegal eviction.
As a first step, you must give notice to your tenant before you can evict them. Generally, this will be a Section 21 or Section 8 notice.
Should your tenant refuse to leave by the date stated on the notice, you may then seek possession by applying for a court order for eviction.
What kind of tenancy?
The legal eviction procedure and the form of notice you must serve will depend on the kind of tenancy.
To evict a tenant from an assured shorthold tenancy, you may use either a Section 21 or Section 8 notice, depending on whether the eviction is at the end of a fixed term or the tenant has broken the terms of the tenancy agreement.
An excluded tenancy or licence, most commonly used where a lodger lives in your home, does not require permission from the courts to evict the tenant.
Assured tenancies generally must have started prior to 27 February 1997 but no earlier than 15 January 1989, and similarly, regulated tenancies generally must have started prior to 15 January 1989. A Section 8 notice is required to evict a tenant from an assured or regulated tenancy.
Section 21 or Section 8 notice for an assured shorthold tenancy?
The conditions under which you seek to evict your assured shorthold tenant will decide whether you use a Section 21 or Section 8 notice.
Section 21
A Section 21 notice may be used to evict a tenant at the end of a fixed term assured shorthold tenancy. So for instance, where the fixed term of the tenancy was one year, you may use a Section 21 notice to evict the tenant at the end of that one year period.
Where the assured shorthold tenancy is periodic, rolling over from one month to another, for instance, a Section 21 notice is also applicable.
However, the Section 21 notice may not be used within 6 months of the start of the tenancy or before the end of a fixed term unless this was added as a clause in the tenancy agreement.
The Section 21 notice is not suitable for evicting from a house in multiple occupation that doesn’t have an HMO council licence.
Where the rental property has received a council improvement notice or council emergency works notice in the last 6 months, a Section 21 notice may not be used to evict the tenants.
A Section 21 notice is also unsuitable where the tenancy began after April 2007 and the deposit provided by the tenant has not been transferred into a deposit protection scheme.
Landlords in Wales must have a landlord licence to use a Section 21 notice.
To be able to use a Section 21 notice, you must have provided your tenants with the government’s How to rent guide, and both an up to date gas safety certificate and energy performance certificate for the rental property.
A Section 21 must give a minimum of 2 months’ notice to the tenant to vacate the rented property.
Once you have presented the Section 21 notice to your tenant, you must evidence this either by completing the N215 certification of service form or by writing on the notice ‘served by’ with your name and the date the notice was given to the tenant.
Section 8
Where an assured shorthold tenant has broken the conditions of their rental agreement, you may use a Section 8 notice.
The period of notice relevant to a Section 8 may vary from 2 weeks to 2 months, dependent on the rental agreement terms that the tenant has failed to adhere to.
Types of court order for eviction
There are generally two kinds of court order for possession that a landlord may apply for, a standard possession order or an accelerated possession order.
Standard possession order
The application process for a standard possession court order comes in two formats, an online process and a postal process.
If you wish to evict your tenants because of rent arrears, you may generally use the online claim service. The cost is £325.
The postal service, completing the standard possession claim form and posting it to your local court, is the only option where tenants have broken the terms of the rental agreement other than falling into rent arrears. The cost is £355.
Accelerated possession order
Where your tenants are not in rent arrears but have failed to vacate the rental property by the date set out in the notice, you may apply for an accelerated possession order.
If you wish to apply for an accelerated possession order but the tenants are in rent arrears, you must make a separate claim for the arrears through the courts.
Download the forms from the gov.uk website and post the completed form to your local court. The cost is £355.
Court notice to tenant
The courts are required to send a copy of your court order application to the tenant.
Once received, the tenant has 14 days to respond and challenge the application for eviction.
Once the 14 days have passed, a judge will consider all of the information, that is, your court order application and any response received from the tenant. They may decide that they have sufficient evidence and issue the court order there and then. Where the judge feels that more information is required to make a decision, they will call for a court hearing.
Court hearings
You or your representative must attend the court hearing. Should this fail to happen, the judge may dismiss the court case.
The purpose of the court hearing is to allow further information to be submitted and to hear from both parties before a decision is reached.
The judge may dismiss the possession order, allowing the tenant to remain in the property. One reason for this could be where you have not followed the correct, legal procedure. This will be an end to the current case and if you wish to take the matter further, you must make a new application.
The judge may adjourn the hearing and arrange a date for a further hearing if a decision cannot be reached on that day. This could be because of the need to gather further information.
Finally, the judge may grant the court order for possession. The tenant will be ordered to vacate the rental property.
The form the court order takes is likely to be one of the following:
- order for possession: requiring that the tenants vacate the property before the date stated in the order
- suspended order for possession: allowing the tenants to remain in the property under the condition that they continue to make payments or adhere to conditions stated in the order
- money order: requiring that the tenant pays a specified amount to the landlord
- possession order with money judgement: the tenants must vacate the property, pay any rent arrears, and possibly cover legal costs
How to challenge the court’s decision
The only grounds for appeal against a decision is that the judge has made a mistake during the court hearing. If you feel that this is the case, you must request permission to make an appeal at the end of the hearing.
Where permission is granted, make sure you apply for an appeal hearing as soon as possible.
What happens if your tenant remains in the property after a court order to evict is granted?
Where you are granted a court order to evict but your tenant remains in the property past the court stated leaving date, you may apply for a warrant for possession. The cost is £121.
A warrant of possession will allow you to use a bailiff to evict the tenants from your property.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
