An outline guide to how a Landlord can legally evict a residential Tenant
There are 2 main routes by which landlords of an assured shorthold tenancy (AST) can recover possession of their property under the Housing Act 1988 (HA 1988) as follows:
the section 8 procedure
the section 21 procedure (on either an accelerated or standard basis)
When serving notices, the section 21 notice can be served at the same time as the section 8 procedure notice. For example, if the fixed term of the AST has come to an end but the tenant is also in breach, the landlord may serve both a section 8 notice and a section 21 notice.
The landlord can then reassess the situation should it be necessary to issue proceedings and decide whether it is best to follow the section 8 procedure or the section 21 procedure.
When the section 21 procedure can be used:
The first step in seeking possession under Housing Act 1988, s 21 is to serve a notice to quit. There are two forms of notice to quit, depending on whether the tenancy is a fixed term or periodic tenancy.
Section 21(1) notice
This must be used where the tenancy is a fixed term tenancy. The requirements are:
the notice does not have to be in a prescribed form or specify any grounds for possession other than giving the tenant at least two months’ written notice stating that the landlord requires possession and must be served before or on the day the fixed term expires
Section 21(4) notice
This must be used where the tenancy is a periodic tenancy. The requirements are:
the notice must give the tenant at least two months’ notice after service and must be expressed to expire on the last day of a period of the tenancy.
depending on the time in the month when the notice is served, in reality the landlord has to give between two and three months’ notice.
So, for example, if the tenancy is a monthly periodic tenancy with a new tenancy arising on the ninth day of every month and the notice is served on 21 July, it must be expressed to expire on 8 October as this the last day of a period of the tenancy at least two months after service of the notice.
That said the landlord does not have to specify a date in the notice and many landlords instead use a formula approved by the Court of Appeal:
‘The landlord gives you notice that he requires possession by virtue of section 21(4)(a) of the Housing Act 1988 of the dwelling house known as [address] after the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice.’ (Lower Street Properties v Jones [1996] 28 HLR 877).
It is critical that the notice is drafted and served correctly, otherwise the court will deem it invalid and the claim will fail.
Court proceedings following service of a section 21 notice to quit:
If the tenant does not leave the property by the time the section 21 notice expires, the landlord may issue court proceedings for a possession order.
The landlord can follow the standard or accelerated procedure depending on the circumstances of the case:
Standard procedure:
This procedure is suitable where the landlord wishes to make another claim in addition to possession, such as for rent arrears.
It involves a court hearing.
Accelerated procedure:
This procedure is suitable where the claim is simply for possession.
There are also other criteria to be met, including the need for a written tenancy agreement and for full compliance with the tenancy deposit scheme.
As it rarely involves a court hearing, it is beneficial where a landlord wants to minimise time and cost and is willing to write off any other claim.
Granting of a possession order
If the landlord proves his case (either under the accelerated or standard procedure), the court must grant a possession order and will normally give the tenant 14 days to leave the property, unless he can show that he will suffer exceptional hardship if evicted on short notice.
Executing a possession order
Protection from Eviction Act 1977, s 2
Although a possession order gives a date for possession, if that date passes and the tenant has still not left, the landlord is not automatically entitled to take back possession of the property as this would constitute a criminal offence. Instead, the landlord will need to apply to court for a warrant of possession and the court bailiffs will then set a date for the eviction.
For more detailed advice please call one of our Solicitors at Tebbitts & Co in Crewe on 01270 211567
Our solicitors can assist with both residential and commercial tenancy agreements, leases and tenancy disputes.
