Tenant Eviction Process Course
There are two branches of law:
- Criminal law
- Civil law
Criminal matters are dealt with in the magistrate or the Crown court. Civil matters are dealt in County or the High court. Nearly all aspects of housing law fall under civil law. A claim for possession is issued in a County Court.
If a claim is under section 8 and for rent arrears, then the Possession Claim Online (PCOL) can be used. PCOL is slightly faster and cheaper as opposed to issuing the claim by post.
Possession claims under section 21 currently cannot be issued online.
You cannot use PCOL to issue a section 21 possession claim. Section 21 possession claims are issued using the Accelerated route using form N5B.
Trespass claims can only be issued by post or in person through a limited number of county courts, who accept over the counterclaims.
Section 21 eviction notice is only applicable to assured shorthold tenancy agreements. Section 8 Notice is applicable to “Assured Shorthold Tenancies” and “Assured” tenancies. To avoid doubt, section 21 notice cannot be served when a tenant has an “assured” tenancy.
- Credit check
- Affordability check
- Previous landlord reference
- Employer reference
Credit check – All landlords should carry out credit and referencing checks on all tenants. The cost of doing a check is only £15, and the cost of not doing one could cost you thousands.
Affordability check – No point letting to someone who is not able to afford to service the rent. Always check the affordability before letting. It is essential to check the employment references to ensure the information the tenant has provided is accurate and up to date.
Previous landlord reference – A reference from a previous landlord is a good indicator, but do not rely on this alone.
Employer reference – Check employment references and check the accuracy of the information provided.
Guarantor – If at all possible, request a Guarantor as part of the pre-letting condition. By having a guarantor, you substantially reduce the chance of rent arrears.
Tenant Rent Arrears management
Eviction has high social and economic costs, and landlords should, therefore, place increasing emphasis initially on alternative approaches where and whenever possible.
Vulnerable tenants (e.g., those with mental health or alcohol and drug misuse problems) may be particularly liable to accumulate arrears if not given appropriate support. The impact of eviction can be significant, as once evicted, former tenants are often disqualified from social housing.
Tenants should not be served with a Notice Seeking Possession until the landlord has established contact with the tenant and spoken to the tenant.
Helpful things to note:
- More the rent arrears, less likely the tenant is going to pay the rent arrears.
- Where a landlord has failed to take timely action, the tenant is likely to ignore paying the rent.
- Data shows court action brought to recover rent arrears from a tenant only 11% of tenants paid the rent arrears.
- Where a tenant does not have the means to pay; do not pursue a money claim, to do so would be a waste of time and money.
- Where a landlord has a Guarantor, data show 68% rent arrears are cleared before the expiry of the section 8 notice.
Steps to prevent rent arrears escalating
Timely action two weeks from the rent due date is essential. You should send the tenant a letter regarding the rent arrears and follow this with a telephone call, if possible.
When you have one full month rent arrears then technically the 2nd-month rent arrears are due, or nearly due. When you do have two months’ rent arrears, then serve a section 8 notice on your tenant.
Seven days after serving the section 8 notice, contact the tenant to discuss the rent arrears. After meeting the tenant should you have no luck, then write to the tenant regarding the rent arrears.
Use the template letters under the BLA “services” page which will make things easier for you.
Which notice to serve, section 8 or section 21?
What is a section 8 notice?
A section 8 notice has 17 grounds. The frequently used grounds for rent arrears are grounds 8,10 and 11. Grounds 14 and 17 are used by some landlord’s time to time. You can download the full list of the 17 grounds under the “service” page.
A section 8 notice is used where the tenant has breached the tenancy like rent arrears, damage to the property, nuisance, or criminal activity.
What is a section 21 notice?
To begin the process to take possession of a property, let on an assured shorthold tenancy. In England and Wales, a section 21 notice (Form 6A) is the notice which a landlord must serve on their tenant.
You do not need to provide a reason under section 21, why the landlord requires possession of the property.
The expiry of a section 21 notice does not necessarily legally bring a tenancy to an end if the tenant is not motivated to give up possession.
The tenancy would only come to an end, by a landlord obtaining an order for possession through a county court. If the tenant is still not motivated to give up vacant possession of the property. The possession order will need to be executed by a county court bailiff or High Court enforcement officer.
If you do not have any rent arrears or a breach of tenancy, then you can only use the section 21 route.
You can only rely on the section 21 notice if the tenancy is about to expire or has expired.
You cannot expect possession of your property before the fixed period of the tenancy has expired.
A landlord must fully comply with their legal obligations. If they have not been complied with, the section 21 notice may be deemed as invalid.
Section 8 notice can only be used if the tenant has rent arrears or breached the tenancy. Do not issue a section 8 notice if you have outstanding disrepairs as a tenant may counterclaim against you.
If there are rent arrears or other breaches than you can serve a section 8 notice, together with a section 21 notice.
What is the relevance of 28th of February 1997 for possession claims?
The housing Act 1988 came into affect 15th of January 1989 which introduced the Assured Shorthold Tenancy agreement. Under this Act, it was a requirement all AST must be in writing, further before granting an AST you were required to serve on the prospective tenant a section 20 notice. The intention of section 20 notice was to warn the tenant the tenancy was a short term tenancy.
The prospective tenant was not required to sign the section 20 notice, it was a counter-notice. However, if a landlord or agent failed to serve section 20 notice, the intended tenancy was promoted to an “assured” tenancy, an indefinite tenancy.
This element of the HA 1989 caused serious problems and was turned on its head by the introduction of the Housing Act 1996 which came into effect 28th of February 1997. After 28th of February 1997, it was no longer a requirement to:
- have a written tenancy agreement (although a written agreement is desirable)
- To serve section 20 notice
If a tenancy commenced before 28th of February 1997 you will be required by the court to provide a section 20 notice and the 1st tenancy agreement, if and when you seek possession through the court.
If a landlord cannot find the 1st tenancy agreement or section 20 notice, then they can only go to court under section 8, if grounds exist.
Process of suing a Guarantor
If a claim for possession is being considered under section 8 for rent arrears and or damage to property, you can within the same claim issue a claim against the Guarantor too. This will save time and money.
Should you succeed in obtaining a judgment against the Guarantor. Provided the Guarantor has property if the Guarantor fails to pay the debt. You can then apply to the court to lodge a charge against the property with HM land registry.
A claim against the guarantor can be made if you are just seeking a money judgement. If this is the case you will need to consider the small claim procedure MCOL.
A tenant can counterclaim for Disrepair, and the tenant is entitled to set off damages for the alleged Disrepair against some or all the rent you are claiming.
If there are concerns about Disrepair, then the section 21 route should be considered. Under section 21, you are not claiming money; hence the tenant should not be able to counterclaim a monetary value when you are claiming non.
Cost Implications of a Counterclaim.
Disrepair’s can cost a landlord an average of £10,000 in legal fees. The cost depends in part on the nature of the alleged Disrepair and the directions given by the Learned Judge.
If the matter goes to trial and the landlord wins, indeed the landlord will get an order where the tenant is ordered to pay the legal fees and rent arrears. The fact is the landlord is unlikely to see any money from the tenant.
After a landlord spending, several thousand pounds in litigation costs and several thousand lost in rent arrears; the landlord understandably cannot treat this as a victory.
Alternatively, if the landlord loses the case, the landlord will have to pay the tenants legal costs and swallow the loss of rent too.
What is the alternative, how can you deal with disrepair claims effectively, from a landlord standpoint?
A lawyer dealing with a disrepair claim ideally should have some experience in plumbing and general building work.
When negotiating directions to progress the claim, it is essential to be prudent in settling on directions that are fit for purpose. If a joint surveyor is not needed, then this will reduce cost and time for all parties concerned.
Joint Draft Surveyor’s instructions
If a joint surveyor is necessary, it is important you draft the joint instructions: –
(1) To report on potential reasons, cause for the alleged problems, see an example. Sometimes the cause is down to the tenant. *
(2) To ensure the surveyor reports “only” on the alleged Disrepair. Far too often, the surveyor’s joint instructions are open-ended. It is essential when dealing with court directions you obtain directions that clearly states the surveyor is to survey the alleged Disrepair.
*If the tenant claims, the property has mould and claims this as Disrepair; then you need the joint instructions to read something like.
- Has the double glazing been fitted with trickle vents?
- Does the flat contain a cloth dryer?
- Is an outside 100mm pipe vent fitted for the dryer? (only ask this if the tenant owns the dryer)
- How many clothes did you see on the radiator?
- Please take a photograph of the top of the radiator showing small rust marks if the radiator does have rust marks at the top of the radiator that is indicative of clothes being dried on the radiator which in turn could cause mould problems.
The above questions are instrumental; the surveyor will see where you are going with these questions. A good litigator will have ammunition, (you pray) so that the Disrepair claim can be defeated.
A Scott Schedule is a standard procedure that landlord’s and tenant’s surveyors deal with problems in a property. A Scott Schedule is like a Schedule of Dilapidations.
It is worth considering if it would be prudent to request the surveyor to prepare a Scott Schedule. Usually, one would be helpful.
Surveyor costs can be anything around £800 to £1200. If the disrepair is one issue of a complaint, then if at all possible avoid a Scott Schedule, in order get a Scott Schedule you will ideally need to instruct a surveyor. If there are several disrepair issues then ideally a joint surveyor ought to be considered and a Scott schedule may be desirable for both parties.
What is a Part 36
A Part 36 offer should always be considered, a powerful tool in disrepair claims. The chance of the landlord getting any rent money from the tenant is low (unless you have a guarantor).
If an offer has been made under part 36 and the tenant rejects it and does not get more than what was offered before trial the Part 36 will become relevant. The defendant may not be able to claim costs after the period the Part 36 offer became active. This is the key for the defendant and defendants lawyers not to risk rejecting a reasonable offer.
Structuring a settlement where you write off the rent arrears, you get a possession order and no money judgement against the tenant, so the tenant is not deemed as intentional homeless is one to consider. Of course, each case is different, one should explore the advantages and disadvantages of Part 36 offer.
Defending a tenant’s deposit claim for compensation when a landlord did not protect the deposit or protected it late.
If a landlord breaches the deposit legislation, then it is a case of limiting compensation quantum.
Tenant Deposit Scheme (TDS) legislation
Landlords must protect the deposit with an authorised government scheme, within 30 days of receiving the tenant’s deposit.
If a tenant deposit was received between 6 April 2007 and 5 April 2012 landlords were required to protect the tenant deposit within 14 days of receipt. From 6 April 2012, the period was extended to 30 days as it is currently. It is also now law, for those landlords who received a deposit before 6 April 2007, then the landlord must protect the deposit by 24 June 2015.
If the deposit was not protected, then you will not be able to serve a section 21 notice.
Under the deposit legislation, you must protect the deposit within 30 days of taking it. You must give the tenant the deposit prescribed information too within 30 days.
Although it is not a legal requirement to get the tenant to sign and date the deposit certificate and the prescribed information, it is wise to get both signed and dated to avoid contention.
If you failed to protect the tenant’s deposit and need vacant possession of your property, you have a few options:
You can consider seeking possession under section 8, if you have rent arrears. You will need rent arrears of 2 months, and in addition, you will need rent arrears which equates to 3 times the value of the deposit, just in case the tenant makes a counterclaim for the non-protection of the deposit.
If the section 8 route is not possible or too risky due to the level of rent arrears or due to Disrepair, then you need to consider section 21 route.
To use section 21 route, you will need to return the deposit money to the tenant.
If the tenant has rent arrears, then obtain tenants instructions in writing to use the deposit held towards the rent arrears. Once you have this, or you have returned the deposit monies to the tenant, then you can serve a section 21 notice.
If the deposit was not protected should you tell the tenant?
No, do not open a can of worms, if the tenant does not know, say nothing. By not protecting the deposit, or protecting late, the breach nevertheless has been committed—no benefit in saying anything to the tenant.
It can be a problem if from the tenant’s point of view the landlord is being unreasonable, making deductions from the deposit money upon the tenant ending their tenancy. At this point, if the tenant seeks advice, they may then realise the landlord has committed a breach of the deposit legislation.
Compensation for not protecting the deposit
Many tenants think that they will be awarded three times the value of the deposit, also, the deposit back too. The law says “up to” 3 times the amount of the deposit. The keyword is “up to” 3 times, which does not mean, that the tenant will automatically receive three times the value of the deposit. It is rare; a court will award the full three times value of the deposit to a tenant.
If a landlord has failed to protect the deposit in time, and the tenant or someone acting for the tenant, has contacted the landlord, then the landlord should:
- Ask the tenant or their representative to put the request in writing.
- IMPORTANT; If a tenant is claiming compensation, then the landlord can consider making a counterclaim for any rent arrears or damage to the let property. The landlord can also request the cost of any notices, that may have served on the tenant.
- The landlord should respond swiftly, to the tenant’s request, for the alleged deposit breach.
- Should the tenant wish to proceed to claim against the landlord, then the tenant should be put on notice, landlord’s intent to (if grounds to do so exist) counterclaim.
- If you have nothing to counterclaim against the tenant than consider offering the tenant one times the value of the deposit and return of the tenant’s deposit.
- If you are a new landlord or a landlord that has 1 or 2 properties, you should seek to reduce damages. It may be reasonable to submit that you are not a professional landlord, as such, the compensation should be one time the value of the deposit. There is a case history of supporting this. You did not wilfully breach the TDS legislation; you probably were not aware of this legislation. It would be best if you were truthful to the court, as to the reasons why the deposit was not protected.
Check the section 21 dates
You cannot serve a section 21 notice during the first four months of the initial tenancy agreement.
The correct form to use is a Form 6A if the tenancy started or was renewed on or after 1 October 2015.
Your section 21 notice must provide at least two months’ written notice (Under Coronavirus Act 2020 notice period is three months).
Your tenant is entitled to notice equal to their rental period if they pay rent quarterly or every six months.
Also note that within six months of the section 21 notice being served, a possession claim should be issued otherwise the section 21 notice becomes invalid and a new notice would need to be served.
Letting agents taking or holding a deposit
Letting agents who hold tenancy deposit on behalf of their clients must ensure to comply with the tenancy deposit legislation as these rules apply to letting agents also.
Section 21 notice checklist, essential documents
A section 21 notice can be invalid if you have failed to give your tenant a current copy of the following documents:
- Gas safety certificate
- Energy performance certificate
- ‘How to rent: the checklist for renting in England’ – a government-produced guide
- Deposit certificate & Deposit prescribed information
If the property is in Wales the landlord and or the agent may require a licence from Rent Smart Wales
If your property has a gas supply, a valid gas safety certificate should be provided to the tenant before they took up occupation of the property. A valid gas safety certificate also must remain valid at the time a section 21 notice is served.
Though not binding authority, in the case of Caridon Property Ltd v Monty Shooltz. Central London County Court. 2 February 2018 the learned Judge delivered a judgement which stated a landlord is required to provide a valid gas safety certificate to their tenants before they took up occupation of the property.
This does not apply if your tenancy started before 1 October 2015 and has not been renewed since.
Overcharged for a fee or deposit
From 1 June 2019 landlords and agents can only:
- take up to 5 weeks’ rent as a deposit
- charge fees in certain situations
Most tenancy related fees are banned which we have written about in a separate article and are known as prohibited payments.
You cannot give your tenant a valid section 21 notice if you took a higher deposit or took a prohibited payment after this date unless they return the overcharged amount first.
But if a letting agent overcharged your tenant, the landlord could still give you a section 21 notice so long as the landlord has not taken a prohibited payment from the tenant.
Is a Licence required
Many houses in multiple occupation (HMOs), such as bedsits and B&Bs, need a licence. Some councils require all private landlords to have a licence.
A landlord who needs a licence cannot serve a valid section 21 notice unless they:
- are licensed; or
- have applied for a licence or temporary exemption from licensing
Ask the council if a license is required.
Section 21 notice invalid due to Disrepair
If the tenant has made a written complaint of Disrepair at the property, you must respond to it adequately within 14 days setting out the action you will take (e.g. details of when you have the necessary repairs carried out). If you fail to do this, the tenant may complain to the council who could serve the landlord with an improvement notice or remedial action notice, if this happens then a section 21 notice served afterwards becomes invalid. This is under retaliatory eviction legislation.
Equality Act 2010
The Equality Act 2010 prohibits discrimination against disabled persons. However, additionally, it contains an additional type of discrimination which is specific to people with a disability, i.e. discrimination in consequence of a person’s disability.
This arises if a landlord treats a tenant unfavourably because of something arising in consequence of the tenant’s disability and the landlord cannot show that the treatment is a “proportionate means of achieving a legitimate end”.
A tenant may be considered disabled if they suffer from a recognised mental or physical illness which has a long-term effect, usually lasting for a year or more. If facts are indicating that the eviction is because of something arising in consequence of a person’s disability, it will then be for the landlord to prove that it was not.
If he/she cannot do so, then the landlord would have to show that, nevertheless, eviction was proportionate. If this cannot be shown, although the section 21 notice itself may be valid, a court could refuse to make a possession order on the grounds of discrimination.
Court Jurisdiction for Possession claims
Possession claims under PCOL are listed to be heard automatically nearest to the address of the let property.
Claim for possession of a property or land must be issued in the county court, nearest to the let property.
HM Court Service website when navigating to “court finder” is useful when identifying which county court is the correct one to use.
If in doubt about what jurisdiction a property address falls under, ring the county court you think maybe the correct court, and double-check.
Issuing a claim using the wrong court can delay the possession claim by two weeks.
County Court Bailiffs
The average time for a county court bailiff to execute a warrant for eviction is anything from 6 weeks to 12 weeks. London County Court bailiffs seem to the busiest, hence it could take about 12 weeks for the physical eviction.
County court bailiffs are cheaper than High Court enforcement officers.
After making an application to the county court bailiffs for the physical eviction of a tenant. You are required to complete and return a risk assessment form to the court bailiff.
High court Bailiffs
High court bailiffs are more expensive to use, however, they can usually evict a tenant in about seven days from the date of instructions, provided all the paperwork are in order.
Properties with the high rental value it may be worth using high court enforcement officers.
Note: you can plead in a section possession claim leave to use high court enforcement officers.
If this were not pleaded in the possession claim, you could make an application later for leave to use high court enforcement officers.
However, this will take further time, and it may not be worth using high court enforcement officers if you must make an application for leave. By the time the application notice is heard, if granted, eight weeks may have already passed. There is no guarantee leave will be granted.Eviction Procedure Course - Tenant Eviction Procedure 2020 Click To Tweet
If you have read all of this page, well done! Why not now take our Eviction Procedure course and obtain a certificate?
Disclaimer: This course is intended to give landlords, agents and property managers a better understanding of the eviction processes so they can navigate around potential pitfalls, however, only qualified lawyers should issue possession proceedings.
Author: Sarah Featherstone
Date: 16th of June 2020