Evicting tenants is a horrible thing to do, but sometimes there is no alternative.
There are things you can do to avoid it – for example:
- Being very careful in your choice of tenants and
- Being responsive if your tenant falls into arrears
However, when it comes down to it, there are only two ways you can legally get vacant possession of your property:
- The tenants moving out voluntarily or
- Eviction by the Court Bailiffs under a possession order made by the Court
So, if the tenants fail to move out voluntarily, your only option is court proceedings.
Two particular situations
1 If you want to sell
If you are thinking of selling your property with vacant possession and there is a tenant living there you need to plan a long time in advance.
Do not accept tenants’ assurances that they will move out in time. There is nothing to stop them changing their mind and this could then put you in a very difficult position.
In particular, NEVER exchange contracts until you have vacant possession.
2 Tenants wanting re-housing
In the vast majority of cases if tenants want to be re-housed by a Local Authority they will be told to stay put as if they move out voluntarily they will lose any right to be re-housed that they might have.
Often they will also be told not to discuss things with their landlord, which is why they may suddenly go silent on you, something many landlords find upsetting.
From the Local Authorities point of view, they will want the tenant to stay where they are as they probably won’t have any housing available to move them to. Re-housing tenants in priority need is a big problem for Local Authorities most of whom have been forced to sell off much of their housing stock under Right to Buy.
If you want vacant possession and the tenants are waiting to be re-housed, the ONLY thing you can do is get a possession order through the courts.
Analysing your situation
If you want to evict a tenant through the courts, you need to have a legal reason for doing so. If your tenancy is an assured shorthold tenancy (AST), then your choices are
- section 21 or
- one of the grounds for possession under Schedule 2 of the Housing Act 1988 (which is the act which regulates ASTs).
It’s also best if your reason or ‘ground’ is a mandatory one. Using a mandatory ground means that if you prove your case, the Judge cannot refuse to make your order for possession as he can for a ‘discretionary’ ground. For example, even if you are able to prove that your tenant has broken some of the furniture (ground 15, a discretionary ground) the Judge may not think that this justifies eviction (which can be a very serious life changing event for tenants).
The other negative point (from the landlord’s point of view) about discretionary grounds is that you may not actually get your property back – as the Judge, even if he makes an order for possession, can stay or suspend it. Whereas if you use a mandatory ground, the most the Judge can delay is 6 weeks.
The most common mandatory ground is the serious rent arrears ground. This is available where the tenant is proved to be in arrears of rent of two months or more at the date of serving your notice and at the date of the court order.
So, for most landlords it boils down to two options:
- Section 21, or
- The serious rent arrears ground.
If at all possible I advise that landlords use section 21 and the accelerated procedure. If you can!
I have a free guide which will help you work out what options are available for you >> here.
The importance of compliance
You will make life a lot easier for yourself if you can prove that you have complied with all the various rules and regulations to which landlords are subject.
For example, protecting the deposit. You won’t be able to use section 21 if you are not compliant with the rules unless you refund the deposit money first. Using the rent arrears ground is problematic too as tenants can defend by claiming the penalty for non-compliance (which will have the effect of reducing the rent arrears due).
The most effective procedure for eviction is still the accelerated procedure based on a section 21 notice but your ability to use this (particularly if your tenancy was created or renewed on or after 1 October 2015) is dependent on your compliance with the rules:
- Serving a gas safety certificate and EPC
- Serving the Governments How to Rent booklet
- Having an HMO licence if required
Some landlords may find, if they are not compliant, that they can’t evict their tenants at all. For example, if they have not got a gas safety certificate and the tenants won’t let them in to get one done.
So, bear this in mind. Many of the rules have teeth and it is as well to be compliant throughout the life of the tenancy or you may find you are stuck with an appalling tenant you cannot get rid of – or can’t get rid of without a lot of time and extra expense.
And finally
If you want to know more about the actual eviction procedure, I have a lot of help and guidance on my Landlord Law site. See here for more information.
Also, further information on this and other topics can also be found on my Landlord Law Blog at www.landlordlawblog.co.uk .
Tessa Shepperson
Tessa is a lawyer specialising in landlord & tenant law and runs the popular Landlord Law online service for landlords.
The Tenancy Deposit Scheme (TDS) is a government approved scheme for the protection of tenancy deposits; we offer both insured and custodial protection. We also provide fair adjudication for disputes that arise over the tenancy deposits that we protect.
These views are those of the author alone and do not necessarily reflect the view of TDS, its officers and employees. Content is correct at the time of writing.
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