How to evict problem tenants
Litigation solicitor Matthew Whipp explores in-depth the process of how to evict problem tenants, covering Section 8 and Section 21 notices. He provides a guide for obtaining possession orders and warrants of possession.
Given the current economic climate, many tenants are struggling to pay their rent or refusing to leave properties at the end of the fixed term of the tenancy agreement.
On more than one occasion, I have been told by a tenant that they are not going to pay rent or vacate a property until they receive a possession order, because “the landlord can afford it”.
This is not the case for many landlords who own one or two investment properties to fund their retirement and even bigger commercial landlords do not want the problems caused by a tenant who refuses to pay rent and/or vacate a property.
In this article, I will provide an overview of the process for evicting a tenant on an assured shorthold tenancy in England.
How do I start to evict a tenant?
To start the process of evicting a tenant you will first need to serve a valid notice on a tenant. Two notices are commonly used to evict a tenant – a Section 8 notice and a Section 21 notice. You can serve one or both notices, depending on the circumstances.
If the fixed term under the tenancy has expired, you can still evict a tenant as, in the absence of a new tenancy agreement, the tenant will have moved on to a “periodic tenancy”, will run on the same terms as the original tenancy agreement from week to week or month to month for the same rent as before.
What is a Section 8 Notice?
A Section 8 notice can be used to terminate a fixed term or periodic assured shorthold tenancy if at least one of 17 specific reasons (or “grounds”) applies. These grounds are set out in the Housing Act 1988. They are split into mandatory grounds (where the Court must grant a possession order) and discretionary grounds (where the Court may grant a possession order if the Court considers it reasonable to do so).
Examples of mandatory grounds that would allow you to serve a Section 8 notice include (but are not limited to):
- You, as the landlord, wish to occupy the property as your main residence;
- The property needs redevelopment;
- The tenant who lived at the property has died; or
- The tenant is in rental arrears of at least eight weeks (if the rent is meant to be paid weekly or fortnightly), two months (if the rent is meant to be paid monthly), or three months (if the rent is meant to be paid every quarter).
Examples of discretionary grounds that would allow you to serve a Section 8 notice include (but are not limited to):
- You, as the landlord, have suitable alternative accommodation for the tenant which is available immediately once the Court has granted a possession order;
- The tenant is in any amount of rent arrears, or has persistently delayed in paying the rent (even if they are not currently in arrears);
- The tenant has failed to comply with any term of the tenancy agreement that is not related to the payment of rent; or
- The tenant is causing an annoyance or nuisance to you or to their neighbours, or is using the property for illegal and/or immoral purposes.
The legally required notice period under a Section 8 notice ranges from as soon as the Section 8 notice has been served to 2 months after the Section 8 notice, depending upon the precise ground relied upon. For example, where the ground relied upon is that the tenant is over two months in rental arrears, the notice period is 2 weeks.
What is a Section 21 Notice?
A Section 21 notice can be used to terminate a fixed term or periodic assured shorthold tenancy without the tenant having necessarily done anything wrong (and without you needing to prove that the tenant has done anything wrong).
Before you serve the Section 21 notice, and in order to prevent the Section 21 notice from being invalid, you will need to ensure that:
- You have provided the tenant with a copy of the property’s Energy Performance Certificate;
- You provided the tenant with the ‘How to Rent’ guide before the tenant moved in;
- You have provided the tenant with a current gas safety certificate for the property (if gas is used at the property) before the tenant moved in; and
- You have placed the tenant’s deposit in a deposit protection scheme
The Section 21 notice will need to give your tenants at least 2 months’ notice to leave your property. However, it is sensible to allow a few extra days for service (i.e. delivery) of the Section 21 notice. For example, if the date of the notice is 20th June, do not insert the date on which the tenant should leave your property as 20th August, but instead allow a few extra days to be safe. Otherwise, a tenant might be able to claim that they did not receive enough notice.
You will need to have proof that you served the Section 21 notice on your tenant and it is therefore advisable to send the notice by recorded delivery or to complete a certification of service form (N215).
What do I do after serving a Section 8 and/or Section 21 notice?
If the tenant has not left the property by the end date in your Section 8 and/or Section 21 notice, you can apply to the Court nearest to the property for a possession order.
If you have served a Section 21 notice, and either there are no rent arrears or you do not want to claim them, you can apply to the Court for an accelerated possession order which will usually be dealt with on paper without a hearing. There is a Court fee of £355 for applying for an accelerated possession order.
If you want to claim rent arrears or have served a Section 8 notice, then you will have to start the normal possession procedure where a short Court hearing will usually take place.
What happens if my possession claim is successful?
If your application for a possession order is successful, the Court will grant a possession order requiring the tenant to vacate the property, usually 14 or 28 days after the date of the possession order. Depending on your application, the Court may also include in the possession order a money judgment for your Court fees, a contribution to your legal costs, and the tenant’s rent arrears.
If the tenant does not leave the property on the date specified in the possession order, you will need to apply for a warrant of possession.
What is a Warrant of Possession?
You can apply for the warrant for possession on form N325. The cost for the warrant of possession is £130. Once received, the Court will notify you of the eviction date and ask you to confirm the date of the eviction by filling in a form.
If you would like a speedier eviction, you can transfer the warrant of possession to the High Court for £71 and request that a High Court Enforcement Officer attend to evict the tenant.
Please note that you cannot evict a tenant without first obtaining a Court order.
How can Lennons help me?
At Lennons, we understand how frustrating a problem tenant can be and how difficult it can be to remove them as the process is not straightforward and there are many pitfalls to avoid.
Please get in touch with our property litigation solicitor Matthew Whipp, who will be happy to discuss your matter further. You can call us on 01494 773377, get in touch by email to hello@lennonssolicitors.co.uk, live chat, or by completing the short enquiry form below.
About the author
Matthew Whipp is a solicitor in our Dispute Resolution department. He started his career as a litigation paralegal, before training and qualifying as a solicitor. He worked at law firms in London before joining the Lennons team in December 2021.