Evicting a tenant will cost you some legal expenses (even if they are fixed fees) and during the process you might not receive any rent. So, while you want to minimise your legal costs you also want the process to be as quick as possible.
Also, the courts are quick to throw out cases where the Notice has been made invalid by something the landlord has done, or failed to do. Then the landlord has to start all over again. So although drafting and serving notice can be the cheapest part of the process, it’s actually the most important.
Under the Housing Act 1988 there are only two processes that can be used to end an AST agreement. They are Section 21 and Section 8. There are other eviction processes for different kinds of tenancy but AST agreements are the most common so that’s what this article is about.
Step1. Serving a notice
Whichever procedure we decide to use, Section 8 or Section 21, the tenant must first be served a ‘notice’. This is our Step 1. Essentially the ‘notice’ is a legal document that has been drafted and served as required by law. It tells the tenant that if they don’t leave by a set date, the landlord will apply to a court for possession.
Serving a notice quickly is a good way to show the tenant you are serious and it gives you options. If the tenant pays, you can choose not to act on the notice. If later, the tenant doesn’t keep to any agreement, you can apply straight away to a court. Serving a notice quickly is a good way of making sure you don’t lose too much. Often, serving the notice is all you ever need to do.
Serve a notice yourself?
Some landlords choose to serve notices themselves. They believe they are saving a few pounds but it often ends up costing them more. There are thousands of served notices that are invalid. Only nobody finds out until the case gets to court (Step 2). Then, a judge might throw the case out because the notice is invalid or a tenant might put in a defence. If you lose a claim, the court will usually order you to pay the tenant’s defence cost, which can run to hundreds or thousands of pounds. We estimate about half of all of invalid notices go unchallenged, because the tenant leaves without the need to go to court. You can find advice all over the internet about how to serve a notice, but it would be impossible to list all the many variables that can make a notice invalid.
Using Section 8 or Section 21?
Your situation might allow you to use either the Section 21 or Section 8 procedure, or it might force you to use one of them. We will always discuss your case with you to decide which route to take. Sometimes we serve both notices at Step 1 and then act with the one that’s going to work best as circumstances change later.
Eviction under Section 21
Under Section 21 a landlord is simply asking for his property back. He is not accusing the tenant of anything. The landlord must give the tenant a minimum of two months’ notice and not require the tenant to leave before the end of the agreement or break period.
This can be a smooth procedure, as long as the landlord has complied with all the tenancy regulations, has drafted the notice correctly and has served it correctly. The notice requires the tenant to leave by a given date. Around 60% of tenants do leave.
If the tenant doesn’t go by the date on the notice, the landlord applies to the court (this is our Step 2). The tenant is not being accused of anything so there is no court hearing. A judge simply reviews the papers submitted by the landlord. If everything is in order, the landlord is granted possession.
It can take about six weeks to get to get a possession order. The court writes to the tenant ordering them to leave (usually two weeks later).
Eviction under Section 8
Under Section 8 the landlord is asking for his property back on the grounds that the tenant has defaulted under the terms of the tenancy agreement. This might be non-payment of rent or any one of several other grounds allowed (by Schedule 2 of the Housing Act 1988).
The tenant is first served a notice (Step 1) which includes the landlord’s grounds for seeking possession and his evidence, e.g. rent arrears schedule. The notice gives the tenant a date by which to leave – at least 14 days after the notice is served.
In 60% of cases, when a tenant receives the 8 notice, they do leave the property. If they don’t leave, we can go to Step 2 – applying for a possession order from a court. If the notice, or the way it was served, did not fully comply with the law- you could end up starting all over again.
At court, we always suggest that the landlord (and sometimes the agent) attends. They can be represented by one of our advocates but it helps to have the landlord there as he can verify any facts for the judge.
Using mandatory grounds, as long as we can prove that the tenant has breached the tenancy, the court must grant our landlord possession. If there are rent arrears, we would also seek a money order from the court.
If granted, possession is usually ordered for 14 days later. The tenant may not have been at court and will be written to anyway.
After you have a possession order (Section 21 or Section 8)
Whichever procedure you use, you take the case to court to get the possession order. The court writes to the tenant to order them to leave. Usually this is 14 days later, but may extend up to 42 days if eviction will cause the tenant exceptional hardship. Very few tenants remain in the property after receiving a court order. If the tenant doesn’t leave, we instruct a bailiff (Step 3). The bailiff removes the tenant from the property.
On Section 8 cases, we can instruct a High Court Sheriff to carry out the eviction instead of using a county court bailiff if the judge at court allows leave Under Section 42 of the County Court Act 1984, to ‘transfer up’, the case to the High Court. This process can be much quicker to evict the tenant. Our advocates will make a request for leave at court, but it is up to the judge’s discretion to grant the leave. It is vital that leave is granted on the possession order.
The most important actions are speed and accuracy
No landlord wants to take action against a tenant. But delay can just mean losing more rent. It can take two weeks to six months to get a tenant out. A mistake on the notice can make the process even longer. The secret to success is to act quickly and accurately. The longer you wait to serve a notice on a tenant, the more rent you stand to lose and the more sleep you end up losing too.