Landlord and Tenant

Evictions

Need help evicting tenants? Our team of expert evictions lawyers are ready to advise you and provide representation at court. We are based at the Middle Temple in central London and can easily travel to any London hearings.  We are also able to advise on any other matters relating to landlord and tenant law.  Note that if you evict a tenant without following the proper legal procedure, you are likely to be committing an offence under the Protection from Eviction Act and could be fined or imprisoned.

What is the procedure for evicting a tenant?

This will depend on both the nature of the tenancy and the situation.  Most modern private-sector tenancies are assured shorthold tenancies.  If this is the sort of tenancy you have, then there are two procedures which can be used: the ‘section 8 procedure’ and the ‘section 21 procedure’.  Section 21 is often the simplest and fastest procedure, although it is not available in all circumstances.  We would of course be happy to advise you as to the best procedure in your particular situation.

In some cases, the tenancy may be a ‘protected’ tenancy, which means that there is a different (and far more restrictive) procedure for evicting tenants.  In these cases, it is particularly important to instruct lawyers with specialist knowledge of landlord and tenant law.

The section 21 procedure

This procedure is only available for assured shorthold tenancies.  In most cases where it is available, this will be the preferred method of eviction, as it allows for accelerated possession proceedings.  The court will be able to grant an order for possession ‘on the papers’, unless the tenant files a defence.  This will be both faster and cheaper than the section 8 procedure in many cases.  However, it should be noted that the accelerated possession procedure does not allow for the recovery of rent arrears and a separate action should be brought for these if necessary – see our page on recovering rent arrears.

A section 21 notice must be served on the tenant in the prescribed form, specifying that the landlord will require possession after a stated date.  At least two months notice must be given; however if a longer period of notice would be required at common-law, then that amount of notice applies.  For example, if the tenancy was quarterly, one full quarter’s notice would be required.  The notice must also expire after a date on which the tenancy could be ended contractually, i.e. the last day of the fixed term or the final day of a rental period after the fixed term has expired.  It is important to get this date right: in one case in 2003, the Court of Appeal held that a notice was invalid because the date specified was one day too late.  It is not possible to use this procedure to recover possession during the first six months of the tenancy.

A section 21 notice may not be served until the deposit has been paid into a deposit protection scheme.  Note that this may cause problems if the landlord attempts to give notice at the same time the tenancy agreement is signed, as the deposit will not normally have been protected by this date.  In any case, the practice of giving notice at the same time as the agreement is signed can cause problems, because the notice may in fact have been given before the agreement was signed, in which it would be invalid.  Even if the correct procedure has been followed, the tenant may still claim that the notice was given too early, and it may be difficult to refute this at trial.

For tenancies created between 15th January 1989 and 28th February 1997, it will be necessary to show that the landlord served the required notice under section 20 of the Housing Act 1988 stating that the tenancy was to be shorthold.

If a section 21 notice has been validly served and the tenant remains in the property after the specified date, then the landlord can seek a possession order from the court.  Note that it is not possible to apply for the order until the notice has expired, even if the tenant has made clear that he does not intend to comply with the notice.  The section 21 notice does not itself end the tenancy; the tenancy will only come to an end once the tenant complies with the notice or a possession order is executed.

The section 8 procedure

This procedure is available both for assured tenancies and assured shorthold tenancies.  While the section 21 procedure is usually preferred for assured shortholds, section 8 may be used if, for example, the tenancy is still within its fixed term.  Usually only 2 weeks notice is required under section 8, although two months notice is required where one or more of grounds 1, 2, 5-7, 9 and 16 is relied on.  This means that less notice is usually required under section 8 than under section 21; however, the fact that the accelerated possession procedure is available under section 21 means that it will still usually be quicker to seek possession under section 21.  As with section 21, the service of a section 8 notice does not in itself bring the tenancy to an end; the tenancy will only end once an order for possession is executed (or once the tenant leaves voluntarily).

Possession under section 8 can only be sought on one or more of the grounds set out in Schedule 2, i.e. possession cannot be obtained simply because the stated term of the tenancy has expired and the landlord would like the property back.  There are 18 grounds, of which 8 are mandatory and 10 are discretionary.  If one of the mandatory grounds is made out, the court must grant the order.  If the application is made on one or more of the discretionary grounds, then the court has a discretion as to whether or not to grant the order.  We find that the court will only make a possession order on the discretionary grounds in the clearest cases.

It is not possible to examine the scope of all 18 grounds here.  Many of the mandatory grounds require the appropriate notice to have been served at the start of the tenancy, e.g. under ground 1, a notice may be served stating that the landlord has previously resided in the property and may require possession, although this notice requirement can be dispensed with if the court finds it just and equitable to do so.  The grounds are: (1) landlord’s residence, (2) possession by mortgagee, (3) holiday lets, (4) lettings by educational establishments, (5) ministers of religion, (6) demolition or reconstruction, (7) tenancy passing by will or intestacy, (8) 2 months’ rent arrears, (9) suitable alternative accommodation, (10) rent arrears, (11) persistent delay in paying rent, (12) breach of terms, (13) waste, (14) nuisance, (14A) domestic violence, (15) damage to furniture, (16) employee lets and (17) tenancy obtained by a false statement.  Of these, 1-8 are the mandatory grounds.

In practice, ground 8 is the most important ground.  This is a mandatory ground for possession and applies when the tenant is at least 2 months in arrears with rent, or 8 weeks where rent is paid weekly, or 3 months where rent is paid quarterly or yearly.  The relevant amount of arrears must be owed both at the time the section 8 noticed is served and at the date of the hearing.  In this case, 2 weeks notice should be given.  After the expiry of this notice, proceedings can be brought (and can also include a money claim for the arrears).  This will require a hearing, and the landlord must prepare a schedule setting out the dates and amounts of rent due and the dates and amount of rent paid.

Evicting protected tenants

The procedure for evicting protected tenants is somewhat similar to the section 8 procedure, in that the landlord must rely on one or more of the grounds set out in Parts 1 and 2 of Schedule 15 of the Rent Act 1977.  Part 1 contains the discretionary grounds, and part 2 the mandatory grounds.  In the case of the discretionary grounds the court will only make the order if it considers it reasonable to do so; the court will always give an order for possession if one or more of the mandatory grounds is made out.  The grounds are: (1) non-payment of rent or breach of other term, (2) nuisance, (3) waste, (4) damage to furniture, (5) tenant has given notice to quit, (6) unauthorised sub-letting, (7) abolished, (8) employees’ accommodation, (9) required as landlord’s residence, (10) overcharging sub-tenants, (11) owner-occupiers, (12) retirement homes, (13) holiday lets, (14) student lets, (15) ministers of religion, (16-18) agricultural lets, (19) protected shorthold, (20) armed force accommodation.  1-10 are the discretionary grounds; 11-20 are the mandatory grounds.  Note that non-payment of rent is a discretionary ground in relation to protected tenants and in practice the court will only grant an order on this ground where there is no prospect that the tenant will pay the arrears.

Unlike the section 8 procedure, there is no need to give formal notice to the tenant before commencing proceedings.

Common law tenancies

Residential tenancies will only rarely be common law tenancies.  However, there are certain circumstances where this will be the case, notably (a) where the rent exceeds £100k p.a., (b) where the tenant is a company and (c) where the landlord resides in the same building.  In addition, tenancies lose their statutory protection (whether under the Housing Act 1988 or the Rent Act 1977) if the tenant ceases to reside at the property.

A common law tenancy for a fixed term comes to an end (‘determines’) automatically at the end of the fixed term.  Note that if the tenant continues to occupy the property and the landlord continues to accept rent, this is likely to give rise to a new periodic tenancy.  A common law periodic tenancy is terminated by giving ‘notice to quit’.  This differs from the notices under sections 8 and 21 of the Housing Act 1988 in that the notice to quit actually brings the tenancy to an end.  Care must therefore be taken after service of a notice to quit to avoid doing anything which might give rise to a new tenancy.

A notice to quit must be for a whole rental period, i.e. one month for a monthly tenancy and one quarter for a quarterly tenancy.  However, for an annual tenancy, six months is sufficient.  For a residential tenancy, the Protection from Eviction Act 1977 provides that at least 4 weeks notice must be given, even if the rental period is shorter than this.  The notice must end on the last day of a rental period, otherwise it will not be valid.  If the tenant does not leave after the specified date, then a possession order may be obtained from the court.

Can I recover rent arrears at the same time as evicting?

Yes, it is possible to apply to the court for an order for payment of any arrears at the same time as an order for possession.  However, you should bear in mind that in many cases the tenant will not have any assets against which such an order could be enforced, so the outcome may not be satisfactory.  Also, the accelerated procedure is not available where the claim includes a claim for rent, which will delay the eviction.  In many cases the landlord will prefer to obtain vacant possession of the property at the earliest possible date, and in that circumstance we would usually advise against including a claim for rent.

I have a court order for possession, but the tenant has not left.  What should I do?

If it is a residential tenancy, you cannot attempt to enforce the possession order yourself.  If you do, you are likely to be committing a criminal offence under the Protection from Eviction Act.  Unfortunately, you must make a further application to court for a possession warrant.  This will be passed to the officially appointed bailiff, who will inform both you and your tenant of the date on which he will carry out the eviction.

There are squatters in my property.  How do I get them out?

Squatters can move in during a period when the property is unlet or they can also move in when the tenant has vacated the property without formally ending the tenancy. In the latter case, possession proceedings should be brought jointly against the tenant and the squatters.  If the tenant is no longer resident, the tenancy will cease to be an assured shorthold tenancy and should be terminated by serving notice to quit.  However, we usually recommend the simultaneous service of a section 21 notice ‘without prejudice’, in case of any possible issue at trial as to whether the tenant had in fact given up occupation.  Where (as is usual) the landlord is unaware of the identities of the squatters, proceedings should be brought against ‘persons unknown’.  In some circumstances it is possible to bring an urgent application to evict squatters.

Disclaimer

This article is for general information only and shall not be deemed to be or constitute legal advice.  We cannot accept responsibility for any loss or damage suffered as a result of acts or omissions based on this article.

Call us on ☎ 02071830529 or email us on for more information about the legal services we provide. Our team of London lawyers are based in Middle Temple adjacent to the Royal Courts of Justice. We are committed to providing professional and specialist legal advice.