As a landlord, one of the biggest issues you will face is if a tenant stops paying their rent but is still occupying the property. It’s the nightmare situation that can be stressful and frustrating as well as expensive – after all, mortgages and other bills still need to be paid.
A common question from landlords is ‘can I evict a tenant myself?’ and the answer to this is complex but in short, the answer must be ‘No’. Even with a Court Order, you will either need a County Court Enforcement Agent or a High Court Enforcement Officer, to carry out the eviction. Unless your property is a Commercial one, and then the rules are different again.
Even before you get to that stage there is a mountain of things to consider. Such as what type of tenancy you have in place. Tenant eviction is a serious and stressful process with a lot of conditions you need to fulfil before you can move to the next step in the process.
Under the current emergency legislation, new evictions from privately rented accommodation have been passed by the government. It means that landlords cannot issue new possession proceedings through the court until the legislation is lifted. Landlords will also be protected with mortgage payment holidays although it is seen as the best practice to pass these savings to the tenant to avoid arrears.
Eviction Procedures for the different type of tenancies
The first step in the tenant eviction process is to check the type of tenancy that they hold with you. There are three main types:
- Periodic tenancies that run either week to week or month to month and don’t have a fixed end date.
- Fixed-term tenancies that run for a set period of time.
- Or you may not have a situation where a person may be a lodger within your home or maybe a holiday let and the occupants are refusing to leave.
The process for evicting each have their own legal process, and the law must adhere to as an illegal eviction will see the landlord potentially in court themselves with a large fine, and possibly a criminal conviction.
If you have a lodger
As a landlord, you must give your lodger reasonable notice to leave the property. If there is a written agreement in place, like a lodger agreement, then this should state the amount of notice to be given.
Reasonable notice usually means the duration of the rental payment period. For example, if your lodger pays rent weekly then you should give one week’s notice and if they pay monthly then you should give one month’s notice.
Notice can be given verbally unless the written agreement states that it must be in writing. However, it is always best for a notice to be recorded in writing, as it could be referred to if any disputes arise.
If they don’t leave
If your lodger doesn’t leave at the end of the notice period, you don’t need a court order to evict them. You can change the locks on the lodger’s room, even if they’ve left their belongings there. Note that you must take reasonable care of their belongings and contact them to make arrangements to collect them within a reasonable time. You can sell their belongings and deduct any storage costs if they don’t collect them within a reasonable time or they don’t contact you.
If you have a Shorthold Tenancy Agreement
Section 21 or Section 8
If you want to notify a tenant that you want them to leave a property, the two options are either Section 21 or Section 8 of the Housing Act 1988.
A Section 21 Notice of Possession is served to give notice of possessions to the tenant. In other words, you are taking back possession of the property at the end of a fixed-term tenancy agreement. This can also apply if there is an agreed break clause such as not paying the rent. Under this Section, you do not need a reason to claim possession to serve a value Section 21 notice.
A Section 8 eviction notice is served when you have grounds for eviction. This could be where the tenant hasn’t paid the rent, normally two-month rent arrears are required before you can issue a Sec 8.
O the tenant has caused damage to the property or is being a nuisance to neighbours, with Anti-Social behaviour. This tenancy but the tenant can dispute it and this will then possibly go to Court, where you would need to provide evidence for the reason for eviction, therefore, it is always better to keep a written diary of events.
Because of the need to provide evidence, landlords often use Section 21 as it is more efficient. As it can be issued for a break in the tenancy agreement, in fact, it is always best to issue both notices and take Court Action on one or both.
Serving a Section 21 notice
If you decide to issue a Section 21 Notice, there are a few things to remember:
- You need to give the tenant at least two months’ notice using the prescribed form within the Section 21 Notice
- You need to give the right amount of notice in writing and be very specific about the required date of possession.
- You should always be reasonable and accommodating with tenants where possible
- You should not try to serve notice to expire earlier than the last day of the fixed term unless there’s a provision for it in the tenancy agreement.
- Make sure you can not be said to be harassing or being anti-social with the tenant as this could lead to them claiming harassment damages in Court
- This is why we always suggest that you employ the services of a company such as ours to serve the documents, as we are seen as independent parties.
Serving a Section 8 notice
Likewise, with a Section 8 Notice, there are some points to remember:
- Try to get the tenant to surrender the tenancy or reach a mutual agreement before you serve the Notice.
- Think about using Section 21 instead if the tenancy agreement is coming to an end.
- Make sure you consider any steps the tenant has taken to remedy the breach if the case goes to court as this will be relevant.
- Remember a Section 8 Notice does not guarantee an eviction as the tenant can ignore it. It is only a Judge who can decide in favour of the tenant, not the landlord.
If you have a holiday let and the temporary resident has not left when it was agreed that they would
A possession order is not required to evict occupiers of temporary accommodation provided under Part VII of the Housing Act 1996; a majority of the Supreme Court has ruled. The case of R (on the application of ZH and CN) v London Borough of Newham and London Borough of Lewisham UKSC 2013/0194 concerned whether temporary accommodation provided under Part VII to an applicant for assistance on the basis of homelessness, pursuant to a local authority’s interim duty to house such an applicant while the authority makes further enquiries, constituted a “premises occupied as a dwelling under a licence” for the purposes of s. 3(2B) Protection from Eviction Act 1977 (PEA).
Can I evict a tenant myself?
After serving the relevant notice, you can then look to take action. A standard Possession Claim works with either a Section 21 or Section 8 Notice. If the tenant fails to leave the property after the order of Possession has expired, it is then required to instruct a County Court Bailiff to evict them which can add 8-12 weeks to the process. Alternatively, you could request that the matter be transferred to the High court for a quicker response from firms such as ours.
The standard Possession Claim is known as CPR 55 and involves filing an N5 Claim for Possession along with an N119 Particulars of Claim for Possession with the relevant County Court. There is an online form, but you can’t use this if you are claiming against a squatter or trespasser. You will also need to file a copy of the tenancy agreement and a copy of your land registry search to confirm ownership.
The accelerated procedure uses for N5B and covers if the tenant has not left by the date specified on the Section 31 Notice and there are no rent arrears. It cuts out the need for a court hearing, but you will need to pay court fees upfront. The tenant has 14 days to object to the Order and there can be a Court Hearing if they do. Otherwise, an Order of Possession is normally issued.
What actions are you allowed to use to evict a tenant?
Having the correct legal paperwork in order is one thing but does not guarantee the tenant will leave. You must carry out the legally required steps or the eviction will be classed as illegal, this will result in the landlord either receiving a fine, and possibly a criminal conviction.
You must not:
- Threatening or harasses the tenant.
- Physically removing them out of the property.
- Prevent them from accessing parts of the house.
- Changing locks while they are out of the house, you must adhere to all legal acts to ensure a lawful eviction.
Why choosing an enforcement agency is paramount to a successful eviction
For both parties, it is usually best to have experienced enforcement officers involved to ensure every step of the process is carried out legally, and without major conflict. This is especially true when it comes to serving paperwork, ensuring time frames are correct and collecting any evidence needed for court orders.
Enforcement Officers also have more things they are allowed to do to remove a tenant than a landlord can. For example, they will be allowed to drill the locks out to get into a property if necessary and use reasonable force to remove occupants, if they refuse to leave. Although no one wants this to happen, and in most cases, the tenants will leave without incident. However, on the odd occasion, an experienced officer will be able to deal with the situation efficiently and quickly. They can arrange about disconnecting utilities and changing locks to secure the property, should the client need it.
By using the right company to carry out the eviction, you can rest assured that everything is done within the very latest rules and regulations, that every step of the process is legal and correct. You also do not need to worry about not completing the eviction lawfully as you will know that because an expert is handling the task.
Here at Able Investigations, we have worked with landlords across the country, in Residential and Commercial evictions. Our staff are always up to date with the latest legal advice and know exactly what can and cannot be done.
If you require any advice on any eviction whether that be residential or commercial please do contact our office for further information.