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The eviction process - a quick overview

 15th January 2018

Tessa Shepperson is a landlord and tenant lawyer and runs the Landlord Law online service. She has over 15 years experience in the property industry.

She has used her years of experience of working with landlords to create an overview which explains the process and meaning of ‘eviction’ and what your options are as a landlord.

There are many circumstances when you may want to evict your tenants:

  • You may want the property back to live in yourself
  • You may want it back, so you can sell it with vacant possession
  • Your tenants may be failing to pay the rent, or may be unsatisfactory in some other way

Or, like the lady who rang me a few minutes ago, you may find, once your tenant has moved in, that they are not what they purported to be in their tenancy application.

In my lady’s case, she let her property to a tenant thinking that she was in employment, only to find two weeks into the tenancy, that she was actually unemployed and on benefit.

Eviction basics

There are several fundamental things to say about eviction:

Fundamental point 1

If the tenants refuse to move out voluntarily, the ONLY way you can legally recover possession of your property is by the Court Bailiffs (or High Court Sheriffs) acting under a Court Order for possession.

Anything else is unlawful eviction, which is a criminal offence.

Fundamental point 2

To obtain a court order for possession you need to have a legal ‘ground’ or reason. This has to be a ground which is recognised in law.

If you are looking to evict an assured shorthold tenant, the grounds used are

  • those set out in the second schedule to the Housing Act 1988, or
  • the fact that a tenant has failed to move out after expiry of the notice period of a (correctly drafted) section 21 notice.

For tenancies which are not assured or assured shorthold tenancies, you can base your claim (where appropriate) on forfeiture or a notice to quit.

Fundamental point 3

You should use a ‘mandatory ground’. The grounds for possession are divided into two types - discretionary and mandatory grounds. As you would expect:

  • Mandatory grounds are where, if the ground is made out, a Judge has GOT to make the order for possession at the hearing
  • Discretionary grounds are where the Judge has a discretion whether or not to make an order - even if the ground is made out.

So, if you try to evict your tenant under the mandatory rent arrears ground and are able to prove it (and if there is no defence) - you will get your order for possession, and the Judge cannot delay the date for possession by more than 6 weeks. However tough this is on the tenant.

However if you try to evict the tenant under (say) discretionary ground 15, which is where the furniture in the property has deteriorated due to ill treatment by the tenant, you will probably face a defence from the tenant which could result in an expensive court hearing. And even if you make out your case, the Judge may in his discretion decide that it is not something that justifies a possession order. Even if he DOES make a possession order, he can stay and suspend this on terms. So even if you are in the right - you may never get the property back.

Many of the ‘horror stories’ you read about horrendously expensive and time-consuming eviction cases will be where the landlord has used a discretionary ground.

Fundamental point 4

It is not a quick process. Even the so called ‘accelerated possession procedure’ is not quick, by normal standards (although it is quite quick in litigation timescales).

Generally, you are looking at a period of some three to six months. Sometimes it can take longer.

If you make a mistake it can take a LOT longer - and you may lose, end up having to pay your tenants legal costs, and have to start again.

The other reason (and probably the most common reason) for the eviction ‘horror stories you hear about is that an error has been made early on in the process and solicitors have had to be instructed to sort things out. It is best to avoid mistakes!

But even if you get it all right it can take a while. I wrote a post a few years ago about a real-life eviction which took three and a half months from the date of issue of proceedings until the landlord recovered vacant possession.

So, my lady who rang up just now who wanted her lying tenant to leave ASAP is not a happy woman. Maybe she should have taken more care when checking her tenant out in the first place (but that is another topic!).

So, what are your options?

I am just looking at assured shorthold tenancies here - as most tenancies will be ASTs.

In most cases it boils down to two options:

  • The serious rent arrears ground, or
  • Section 21.

Section 21, if you can use it, is generally the most straightforward option. However, you cannot even serve the notice during the first four months of the tenancy, and it cannot be used until the fixed term is over (so it would be no use to the lady who rang me up). There may also be problems if you have not dealt with the deposit correctly or (where appropriate) served a gas safety certificate or an EPC.

If the tenant falls into arrears of rent during a long fixed term, then the rent arrears ground is there for you. However, it is not as straightforward as section 21, can be derailed if the tenants have a defence or counterclaim (e.g. based on disrepair) and Judges are tending to adjourn cases now if there is even a suggestion of a defence.

The final solution, is of course to sell the property on with the tenants in situ and let the new owner sort out the problems! Which is the solution offered by the Open Property Group!

If you decide to give eviction a go, or want to learn more, please refer to my free eviction guide.

To find out more information about the eviction process, Tessa has extensive guidance for landlords on eviction of tenants which you can view here.

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