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/ 14 Jul 2022

Tenant Evictions: frequently asked questions

Tenant evictions can be tricky, and strict procedures need to be followed. This FAQ guide contains some of the more frequently asked tenant eviction questions. Read on to find out the answers to your questions.

Jack Glover

Solicitor

Property Litigation & Dispute Resolution

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Victoria Copeman

Partner

Head of Property Litigation & Dispute Resolution

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You can potentially still evict a tenant when you do not have a written tenancy agreement. You will first need to establish what type of tenancy has been granted to the tenant. The date the tenancy was granted, the amount of rent, how often rent is paid, amongst other matters, are key points to consider when trying to establish this. Once you have confirmed the type of tenancy, you can then potentially serve the relevant notice on the tenant.

However, in the case of an AST, you may not be able to serve notice if you cannot rely one or more of the grounds for possession with a section 8 notice and have not taken all the necessary steps to allow you to serve a section 21 notice.

Failure to protect a deposit or provide the gas safe certificate, EPC, how to rent guide and deposit information will not be a bar to serving a section 8 notice, or notice to quit. However, you would not be able to serve a section 21 notice, unless and until you have provided this information to the tenant.

The tenant does not have to leave on that same day and the possession order will likely give a later date for possession. If a tenant does not leave on the date stated in the possession order, you will need to instruct High Court Sheriffs or County Court Bailiffs to enforce the possession order. The Sheriffs or Bailiffs will then attend on a specified date and the tenant will have to leave on this date.

It is difficult to say how quickly a given case will proceed through the court, as this will depend on a number of factors, such as the court location, the number of cases issued at that court and court staff availability, amongst other factors. However, you can expect to wait at least several months between issuing your claim and getting a date for a possession hearing.

In this situation, the tenant has not actively surrendered possession of the property to the landlord and so whilst they retain the keys, the tenancy agreement is still effective. In order to avoid any potential claims for an illegal eviction, you would still need to serve notice on your tenant, issue proceedings and obtain a possession order, before you can take back possession of the property.

In this scenario, it would appear the tenant has actively surrendered the property, so you can treat the tenancy as at an end. As to the possessions in the property, you would need to place a torts notice at the property. This notice gives the tenant reasonable time (usually around 7-14 days) to contact the landlord to collect their belongings. After this time, the landlord is then free to sell or dispose of the tenant’s belongings.

This is no bar when issuing either a possession and money claim, or just a money claim for rent arrears accrued during the pandemic for residential property. In contrast, there is a restriction on rent arrears accrued during the pandemic for commercial properties, owing to the Commercial Rent (Coronavirus) Act 2022.

If you are sending a letter by first class post, the post office can give you a certificate of postage. In addition to the proof of postage, you would also draft a certificate of service, detailing when and how the notice was served.

If a notice is served by first class post, it is deemed served (taken to have been received) 2 working days later. Beyond the above steps, you do not need to prove it has arrived and it would be for the recipient to argue that it has not.

The Government, in its white paper on the Rent Reform Bill, has announced that it will be adding additional grounds for possession for the landlord, whilst also abolishing section 21 notices.

The draft bill has yet to be published, but we understand that grounds which allow the landlord to serve notice on the basis they are selling their property and also to move family members into the property are set to be introduced.

 

There will also be an additional mandatory ground of serious rent arrears, under which a landlord will have to prove the tenant has been in more than 2 months of arrears, on 3 separate occasions in the space of 3 years. This is regardless of the level of the arrears at the hearing.

You can personally serve a section 21 notice on your tenant, as you can with section 8 notices and notices to quit.

In terms of the evidence you can use to prove anti-social behaviour, this could include a nuisance diary, sound or video recordings, witness statements prepared by someone living next door to the anti-social person and also photos. With the nuisance diary, you would set out the date the incident occurred, together with a description of the behaviour that was anti-social.

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