Evicting a tenant; what you need to know – Section 21 and Section 8 notices.
Evicting a tenant can be a very emotive topic. From the outset I would like to make clear that evicting a tenant should always be a last resort.
Here at Kreiga we believe that early intervention is key to resolving any issues that could lead to a breach of tenancy and evicting a tenant.
Read more about our social heart here: http://www.kreigablog.co.uk/business-mind-with-a-social-heart/
Obviously a resolution is not always possible and there will always be tenants who are out to cause problems. In these cases no amount of help or support will change their views and ultimately, legal action and eviction are the only outcome.
Thankfully the professional tenant is rare and often we find that engaging with the tenant right from the start id the key to a long and smooth relationship.
Let’s look at the eviction process and what we need to know when evicting a tenant:
We have offered the tenant support, we have signposted to relevant support agencies, we have offered financial advice but we are still in a position that we are unsatisfied with the way our tenant is conducting the tenancy. We are certain that no matter what support we put in place, we are not going to see a change in their ability to sustain their tenancy so we commence the legal process.
First, we will need to serve notice. Getting this part right is key, and our success in court relies heavily on the correct notice being served with the correct grounds at the right time.
You need to understand that there are 2 types of notice:
- Section 21.
This notice gives the tenant 2 months to vacate the property. If at the end of the notice your tenant has failed to leave then we apply to court for a possession order.
- Section 8.
This notice can be served for a number of reasons and relies on one or more of 20 grounds being met. Because this notice is fault based there will always be a court hearing and ultimately the judge decides the outcome.
I will detail the 20 individual grounds another time but for now it is enough to know that the first 10 grounds are what we call mandatory grounds; meaning that as long as we can prove to the judge that one or more of these grounds have been breached then he or she must grant a possession order.
The last 10 are discretionary grounds; meaning that the judge is able to make a decision based on their own discretion and on the balance of probability.
Balance of probability is the legal test used in all civil litigation and requires far less evidence than “beyond a reasonable doubt” used in criminal cases.
Ground 8 of the section 8 notice is the most commonly used when evicting a tenant. If a tenant is 2 or more months in arrears then this is the ground that we rely on in Court and is a mandatory ground.
If this is done correctly then it should lead to a very easy hearing and we should leave court with a possession order.
Listed below are all the things you must have in place to make the court hearing go as smoothly as possible when evicting a tenant:
The case file
This is very important. Your representative should have created a water tight case. The judge should be able to look at a copy of your tenancy agreement, review a detailed rental statement, check that all relevant documentation is present, see that the tenant is clearly in arrears and then grant the order. Remember this ground is mandatory but relies heavily on excellent record keeping. If your records are not up to date the judge could adjourn the case costing more money or worse dismiss the case in its entirety.
I would recommend that you always use a specialist in these cases, even if it is only to review your notices. A specialist will ensure that your notices are correct and can save you an awful lot of time and money in the long run.
Section 21 notice
A section 21 notice is the most commonly used way to begin the three-step process of evicting a tenant with an assured shorthold tenancy contract.
Step 1 serving notice
Section 21 notice is a no fault notice. This means that you do not have to rely on grounds. You are not claiming against your tenant for breach. You are simply asking for your property to be returned.
As there are no grounds to prove, it is rarely necessary to attend a court hearing and the majority of the hearing or claim is done on paper. However alarm bells begin to ring if the judge raises a challenge.
9 times out of 10 the challenge has been raised due to an error in the notice. I cannot emphasise enough how easy it is to make errors in the preparation of your case bundle.
You must also have followed certain rules for protecting your tenants tenancy deposit and provide your tenant with the required tenancy deposit information.
To be legal a Section 21 notice must:
- Be delivered in writing and give at least two months’ notice
- Be on a prescribed form if your tenant signed a new contract or a renewal agreement on or after 1 October 2015
- End on the last day of the fixed term of your contract.
You cannot use a section 21 notice To evict your tenant during the fixed term of your contract.
Step 2: Going to court
If your tenant stays in the property after your two months’ notice has ended, you must apply to court for a possession order to get the property back.
You will usually get the possession order if you have served the section 21 notice correctly. The eviction process can take from 4 to 6 months, depending on how busy the court is.
Your tenant can challenge the eviction if the section 21 notice isn’t valid.
The Court will send your tenant papers, including a defence form. Your tenant can use this to reply to the court and explain why you can’t use the section 21 notice to evict them, for example because they complained about repairs or their tenancy deposit wasn’t protected.
If the notice is incorrect then your tenant can ask the court to delay the eviction. The extension could be to stay up to 42 days longer. This is only granted in exceptional circumstances.
After your tenant sends the court their defence form, it arranges a hearing. At the court hearing, your tenant will have a chance to put forward their case. The judge considers their situation and what the law says. The judge won’t grant a possession order if the tenant didn’t receive a section 21 notice or if it isn’t valid. Otherwise, the court will give them a date to leave.
Step 3: Bailiffs
When you are granted a possession order, the court sets a date for your tenant to leave.
If they stay beyond this date, you can ask the court to send a bailiff.
Only court bailiffs can physically evict your tenant.
The court will send your tenant a letter to let them know that the bailiffs are coming. This gives them time to pack their belongings.
Bailiffs can assist in evicting a tenant and their belongings from the property.
So there it is; the processes & notices you should use when evicting a tenant.
The process is not as scary as it sounds and is something that our experts here at Kreiga have dealt with on a regular basis for over 20 years. We have an excellent track record and are well respected in the local Courts. The Judge is often safe in the knowledge that when a representative from Kreiga stands before them that the case is not only fair, but that all other avenues have been explored prior to eviction.
I am more than happy to discuss the laws and legislation around eviction in more detail on an individual basis so please feel free to drop me a line.