One of the most challenging aspects of being a landlord is having a tenant who has not paid their rent. While many disputes with tenants, such as over the condition of the property or facilities in the property, can generally be settled by agreement – when a tenant persists in not paying the rent, decisive action becomes necessary.
It is vital that landlords ensure they follow the correct procedure for eviction, as the courts tend not to look favourably on landlords who don’t follow the rules.
When can an eviction take place?
If a landlord has failed to extract payment from a tenant (or the tenant’s guarantor), and there is no prospect of a settlement being negotiated, it may be time to pursue matters formally in accordance with the law. A court order will need to be obtained before a tenant can be evicted.
Can a landlord evict a tenant without a court order?
No, it is a criminal offence for a landlord to evict a tenant without a court order, or to harass them in an effort to force them out. A court order will need to be obtained under the Housing Act 1988, which covers private sector tenancies in England and Wales where the property is let on an assured shorthold tenancy (most private tenancies are ASTs).
Under the 1988 Act, a court can grant a repossession order ordering the tenant to vacate the premises. Until then, the landlord must not take steps to evict the tenant.
When can a repossession order be granted under the Housing Act 1988?
A repossession order can be granted if the tenant owes more than two months’ rent (or eight weeks, three months or 6 months, depending on when rent is payable). You can also ask the court for a money order for the rent arrears owing.
What is involved in the process of asking the court for a repossession order?
Section 8 Notice
To start repossession proceedings, the landlord must issue a Section 8 Notice in accordance with the 1988 Act. This notice is in a prescribed form called Form 3: Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy.
This Notice must be correctly drafted and served, otherwise it is likely to be invalid. At the least, if the Notice is not served correctly this may cause a delay in the repossession process. Specialist legal advice is therefore recommended.
The Section 8 Notice provides the tenant with 14 days in which to respond to the Notice. Sometimes, receiving a formal Notice will be enough to persuade the tenant to repay any outstanding rent, and to get back on track with regular rent payments. In other cases, receiving a Section 8 Notice may prompt the tenant to vacate the property.
However, if the tenant neither pays up not vacates the property, the landlord may apply for a hearing at a County Court.
The whole process can be speeded up by using the government’s online possession claim service.
The purpose of this hearing is to enable the judge to consider the evidence, and grant a repossession order if the rent remains unpaid and in arrears of more than two months or eight weeks at the time when the hearing is held.
However, a hearing will not be appropriate in circumstances where rent is unpaid because the property is in disrepair, or rent arrears are due to a delay in a Housing Benefit claim. In these cases, the matter should be dealt with through the Local Authority not the court.
What happens when a repossession order is granted?
When a repossession order has been granted by the court, the tenant will be required to vacate the premises. In most cases the tenant will do this willingly, but in some cases they will not.
What if the tenant refuses to leave?
If a tenant still refuses to leave the premises, in spite of a repossession order having been granted, the landlord can arrange for Court bailiffs to enter the premises and remove a tenant who is in breach of the court order by not leaving. To do this, you will have to apply for a warrant of possession before bailiffs can be instructed.