We thank Tessa Shepperson for contributing to the Alphaletz blog for our readers. Tessa is the Founder of Landlord Law and is a solicitor specialising in help for landlords. You can view Tessa’s website by clicking here.
There are many reasons why a landlord may want to evict their tenants:
- The tenants could be in arrears of rent.
- There could be anti-social behaviour with complaints from neighbours and other tenants.
- They could be refusing to allow you access, for example for gas safety inspections.
- You may want the property back for yourself, either to live in or to sell.
All valid reasons to want to evict. But the first thing I need to say to you is…
Are you sure eviction is the best answer?
There are big problems with eviction proceedings:
- They take a very long time. Even before the pandemic, they were slow, but after all the delays at court during the pandemic period, it could now take you up to a year or more to obtain vacant possession
- Generally, if tenants know that they are going to be evicted, they ‘give up’ and stop paying rent in order to save up for their next property. This could result in enormous financial losses for you. In most cases, you will never recover this money from the tenants.
- Eviction proceedings are very stressful, not just for the tenants but also for the landlords.
Are you sure you want this in your life?
This is why it is always best to try to find an alternative solution if you can.
Let’s take a look at some of the options.
Helping your tenant to pay.
By far and away, most eviction claims are brought because the landlord wants to sell the property, or the tenants are not paying rent.
If you are otherwise happy with your tenants, it makes sense to try to help them to pay rent, so you can retain them as a tenant and avoid the hassle and loss of income that inevitably comes along with eviction.
For example:
- Would allowing them to pay the day after their salary is paid help them?
- Are they in difficulty with their utility bills too? Help is often available for this, and a search on the utility website will often find pages with details of grant aid. Tenants may also be eligible for the Warm Home Discount.
- Are they on benefit? In which case are they receiving the RIGHT benefit? They can check this here.
- Would they be entitled to a discretionary housing payment from the Local Authority? Find out more about this here.
It is also not often realised that there are literally thousands of charities and other organisations which will give grant aid to people in need.
These are often directed at people in specific categories, for example…
- If the tenant or anyone in their household has ever been in the armed services, check out SSAFA here. The Royal British Legion may also be able to help.
- If there are children in the house, try Children in Need
- If the tenant or someone in the household has been in prison, try Unlock.
- If the tenant is working in the hospitality sector, try Hospitality Action.
A good place to search for grant aid is the website Turn2Us.
Note that Landlord Law has a special kit to help landlords and letting agents help their tenants with rent arrears which you can read about here. It is very detailed, and there are lots of practical examples to inspire you.
Another advantage of helping rather than evicting tenants is that they will then (in most cases!) be grateful to you, and will look to work positively with you in future. It’s always best to get your tenants on your side!
Tenant Eviction Mediation
People often dismiss mediation as a sort of ‘wishy washy’ inferior alternative to court action and just want to steam ahead to have ‘their day in court’.
However, mediation can be surprisingly effective, and there are options available in mediation which are not available when you go to court.
One problem is that court proceedings often do not address the real problem at issue.
For example, a non-paying tenant may be withholding rent as a protest due to your failure to carry out essential repair and maintenance work.
Whereas you may not be doing the repair work because they are not paying their rent!
Mediation can cut through these misunderstandings and develop a plan to deal with the real problems at issue with the tenancy.
Also, it is also worth mentioning here that under the Civil Procedure Rules (and in particular, the Practice Direction on Pre-Action Conduct and Protocols, claimants are expected to try to resolve issues before starting court proceedings.
The Judge will expect you to have at least tried to speak to your tenants about things (so keep a record of all your contact with them so you can prove what you have done).
This is why a professional Property Management System like Alphaletz is so important, where you can track all your notes, phone calls, texts, emails and documents and access them from anywhere including your mobile phone.
‘Gung ho’ applications will be frowned on by Judges as potentially wasting their time (a serious matter in view of the huge pressure on court time), and this could adversely affect your case.
So even if your attempt to use mediation does not work, the fact that you have tried to resolve the issue (and are able to prove this by paperwork from the mediation company) will help you greatly if you do eventually have to go to court.
There are two mediation services you could try:
Both are excellent services and specialise in landlord and tenant related issues.
Paying tenants to go.
Many landlords would rather gnaw their own arm off than pay their unsatisfactory tenants a penny, but it’s often worth setting emotions aside and looking at what long-term will work out to your financial advantage.
It may work out considerably less expensive to pay tenants what they need to move to another property rather than wait up to a year (with no rent coming in) to evict them.
If you decide to go down this route, take care that no money is paid over until you have vacant possession.
Before anyone asks, it is not harassment to offer to pay someone a large sum of money to leave!
So long as you don’t go and shout at them! In fact, it may be best to make this sort of offer through solicitors.
Injunctions.
For some situations, particularly urgent situations, an injunction may be the answer.
For example, many landlords go to court for what are called ‘‘gas injunctions’ where tenants are refusing to allow access for gas safety inspections.
Note that if you have this or another access problem, the Landlord Law Property Access Kit has detailed guidance, including guidance on how to apply for a ‘gas injunction’ without using solicitors.
Injunction proceedings may also be the best answer if your tenants have brought in extra occupiers, making you potentially liable for an HMO license.
It can also be used to stop tenants if they are carrying out alteration works to the property which you do not want or if their behaviour is causing damage to the property, particularly if this will reduce its value.
Although often just threatening injunction proceedings (and the inevitable costs order that would be made against them) may often be sufficient to persuade your tenants to stop doing whatever-it-is.
Particularly if you use solicitors to send your warning letter.
If there is no option but eviction.
First – is the property in England or Wales? Be aware that the law in Wales is due to change radically on 1 December 2022 when the Renting Homes (Wales) Act 2016 comes into force.
Landlords will also need to be registered and (if they are self-managing) licenced with Rent Smart Wales.
The rest of this article does not cover Welsh law and is only appropriate for properties in England.
So, in England, your options will largely depend on the type of tenancy you have.
In most cases, this will be an assured shorthold tenancy, which means that the Section 21 ‘no fault’ procedure may be available to you.
You should check this, though as not all tenancies are ASTs. Landlord Law have a free ‘Tenancy Trail’, which you can use to check this.
If the tenancy is an AST and you want to use section 21 (while it is still available) then you need to check that you have complied with all the Section 21 pre-requisites.
The Section 21 & Its Prerequisites.
Before serving your notice you must have:
- Dealt property with any deposits (which includes protecting them with a government-authorised scheme and serving ‘prescribed information’ within 30 days of receipt of the money.
- Obtained an HMO license if your property is subject to HMO licensing.
- Refunded any payments which were taken in breach of the tenant fees rules.
- Served a gas safety certificate on tenants at the start of the tenancy (or at least have obtained a GSC at that time.)
- Served Energy Performance and Electricity certificates on tenants at the proper time.
- Served the governments ‘How to Rent’ booklet on tenants.
- You will also be unable to serve a section 21 notice within six months of service on you of a Local Authority improvement notice or similar.
You need to be careful to be compliant with all of the above as if your Section 21 notice is invalid, your possession claim will be thrown out, and you may have to pay your tenant’s legal costs.
You will need to use a prescribed form (form 6A), and there are time limits both for serving the notice and for bringing proceedings after the notice period has expired.
Note that the Landlord Law service has a detailed Section 21 guide as well as a detailed Eviction Guide which takes you through the process of bringing a claim.
What happens if Section 21 is no longer available?
If, for any reason, Section 21 is not available to you, and you are looking to evict for rent arrears using the ‘Section 8 notice’ procedure, there are other things you need to check first.
If there are any issues, for example with repairs, make sure that these are resolved BEFORE you issue proceedings, and get confirmation from the tenants that they have been sorted to their satisfaction.
You should also prepare a detailed schedule of arrears, which should go back to the time when the tenants were last paid up (or the start of the tenancy if they have always been in arrears!).
Again, Alphaletz is a great software system for Landlords that allows you to track all of this and produce insightful reports at the touch of a button.
Before issuing proceedings based on rent arrears...
You need to make sure that your tenants do not have any claims which they can bring against you. For example
- Are they likely to pop up and claim that the property is in disrepair?
- Or counterclaim for the penalty because you have failed to protect their deposit?
If there are any issues, for example with repairs, make sure that these are resolved BEFORE you issue proceedings, and get confirmation from the tenants that they have been sorted to their satisfaction.
You should also prepare a detailed schedule of arrears, which should go back to the time when the tenants were last paid up (or the start of the tenancy if they have always been in arrears!).
Your schedule of arrears should be referred to in and attached to your Section 8 notice which should be served on tenants not less than two clear weeks before you issue proceedings.
Tip: It’s best to allow a few extra days to your notice period to guard against it being too short.
‘Tight’ notice periods are very much to be avoided.
The last thing you want is for your claim to be thrown out by the Judge because you have given insufficient notice in your possession notice. This applies to all possession notices.
Note that Landlord Law service has guidance on section 8 notices for rent arrears and detailed guidance in our Eviction Guide on bringing a claim based on rent arrears.
If you can't use Section 21 & there are no rent arrears.
There are a lot of other ‘grounds’ you can base an eviction claim on (assuming your tenant has an assured or assured shorthold tenancy.)
However, most of these are either quite complex or are ‘discretionary’ grounds where the Judge does not have to make a possession order, even if the ground is made out.
Bearing in mind that if your claim fails, you could be ordered to pay all your tenant’s legal costs, it is best to obtain legal advice before doing anything.
Landlord Law has telephone advice service here where you can book a call with a specialist landlord and tenant solicitor to discuss your case.
What if you want your property back to sell, and Section 21 is not available?
Quite a few landlords are looking to recover possession and sell up at the moment, fed up with the tax situation, and constantly changing regulations.
If you have served a ground 1 notice on your tenants in the original tenancy agreement, no problem, you can use that ground to evict. It should be straightforward. Ground 1 is a mandatory ground which can be used if:
- You have previously lived in the property as your home, or
- You want it back to live in now, AND
- A notice (A Ground 1 Notice) was served on the tenants warning them this could happen at the start of the tenancy (the notice is normally included in the tenancy agreement.)
However, if no ground 1 notice was served, you can still bring a claim on that ground, but you are no longer entitled to possession as of right.
A Judge must decide whether your request is reasonable or not.
A Ground 1 Notice is often included, however, so check the tenancy agreement (it must be in the original tenancy agreement if they have had more than one).
If Ground 1 and Section 21 are not available – you may have a problem.
Wanting your property back to sell is not (at present) a ground for eviction. Your best bet is to take some proper legal advice from a specialist landlord and tenant solicitor (not ‘John down the pub’.)
For example, maybe the problems which you believe are preventing you from using Section 21 can be overcome. A specialist solicitor will be able to advise you on this.
So far as the availability generally of Section 21 is concerned – I know that practically all political parties have committed to abolish it, but this is not going to happen any time soon.
We don’t even have a draft bill yet.
When it is eventually abolished, it looks as if wanting your property back to sell will be a new ground for possession which will be introduced at that time.
However, Landlord Law’s view is that there is no point speculating about what may or may not happen in a couple of years time when at present, we don’t even know who our prime minister will be by Christmas 2022.
What if the tenancy is not an assured or assured shorthold tenancy?
It will probably either be a protected tenancy under the Rent Act 1977 or a ‘common law’ or unregulated tenancy.
Protected tenants are notoriously difficult to evict as they have strong rights. You should seek legal advice before doing anything.
Common law tenants can be evicted quite easily once their fixed term has expired after service of an old style Notice to Quit.
Again, the Landlord Law eviction guide has full details.
Some general tips on evicting a tenant.
If you are looking to evict a tenant either under Section 21 or because of rent arrears, it is normally fairly straightforward.
This type of claim is at the ‘easy end’ of the litigation ease of use scale. Landlord Law has a free guide here which will help eliminate some problems.
However, you do need to be very careful. If you make a mistake, it can cost you dear in legal costs and time (which is also money if your tenants are not paying rent).
It can also be very difficult to stop a claim if you find you have made a mistake.
The ‘horror stories’ you hear about where landlords have had enormous problems are almost always where landlords have made a fairly basic mistake before or at the start of proceedings.
So you need to be extremely careful if you are acting in person and double-check everything. Twice.
Remember also that solicitors tend to charge more if called in to sort out something which has gone wrong!
Incidentally, if you decide to have someone act for you, it is best to use proper solicitors rather than the various ‘eviction companies’ you find on the web.
These are usually run by unqualified people and don’t carry the proper insurance. For example, read about the problems experienced by one landlord here.
If the website doesn’t say it’s a solicitors service – it probably isn’t.
Preventing the need to evict in the first place.
If you are reading this because you already have a nightmare tenant, then this is a bit late for you – but there is always a next time.
So take care.
Choosing a good tenant is really the most important thing a landlord (or their agent) does.
So ALWAYS check applicants carefully (and make sure your agents do this) and don’t skip anything just because they ‘seem OK’.
That’s why we recommend Advanced Rent who do thorough credit checks going back 6 years, properly verify employment and income, and even use Open Banking to do an affordability assessment.
So ALWAYS check applicants carefully (and make sure your agents do this) and don’t skip anything just because they ‘seem OK’.
Remember that con men are very persuasive – that’s why they are successful con men!
Find out more about choosing tenants in a blog we’ve written here.
Using a professional software product like Alphaletz that was designed by landlords, will also help you greatly as you will be warned when rent payments are missed – and it is at this stage that you have the best chance of dealing with things successfully.
Another great tip is to take out rent guarantee insurance which is incredibly good value with plans starting at just £15 per month. It will even cover you for up to £100,000 of legal cover and serve all the section notices.
The Landlord Law has a special Rent Arrears Action Plan which can help you and you can also set up an account with Alphaletz here completely free for your first property.
Get the latest, straight to your inbox!
Get the latest property news, tips, tricks and advice straight to your inbox for absolutely free.
