If you are a Landlord, one of the things you need to be very careful of is ensuring that, should you need to evict your tenant, you do so in the right way. This is because, under the Protection from Eviction Act 1977, failure to do so could result in your committing an offence and being liable to both prosecution and civil claims for compensation from your tenant.
You will almost always require a Court order to lawfully evict your tenant. There are various grounds on which a Court may order possession (non-mandatory), but fewer on which the Court must order it (mandatory).
Landlords usually wish to avoid bringing claims for possession on non-mandatory grounds. This is because, in such circumstances, the Court’s discretion is unfettered; it may, if it feels appropriate, make a suspended order under which the tenant may remain in the property.
If the Court makes an order on the basis of one of the mandatory grounds, the Court must make an immediate possession order, with the longest period of time for which the tenant is allowed to remain in the property being 6 weeks, and even then only on the basis of exceptional hardship (which does not include homelessness, which is an inevitable hardship of an eviction). Ordinarily, the tenant will be ordered to vacate the property within 14 days.
This article will focus on the two most common mandatory grounds on which claims are brought.
Under Ground 8, Schedule 2 of the Housing Act 1988 (‘the Act’), the Court must order possession if;
‘…at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing-
(a) if rent is payable weekly or fortnightly, at least eight weeks rent is unpaid;
(b) if rent is payable monthly, at least two months rent is unpaid;
(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
(d)if rent is payable yearly, at least three months’ rent is more than three months in arrears;
and for the purpose of this ground “rent” means rent lawfully due from the tenant.’
The thing to look out for when relying on this ground is that the arrears must be outstanding at the time notice under section 8 is served and at the time of the hearing. Therefore, if the tenant is always one month behind with their rent, even though there may be a short period of time in which two months are due in which the notice may be served, given their pattern of paying, the likelihood would be that, come the time of the hearing, the arrears may be less than two months’ worth. If that was the case, the claim for possession could not succeed.
Accordingly, ground 8 claims are most suitable where a tenant has a significant amount of arrears and no obvious means of making a large payment towards them in the near future.
If ground 8 is appropriate, the first thing to do is serve a notice under section 8 of ‘the Act’. Under section 8, the landlord must serve on the tenant a notice which specifies that they wish to claim possession of the property and rely on ground 8 to do so, and provide particulars of the claim (i.e. the amount of rent normally due and when, the amount outstanding etc.). The notice must also state that possession proceedings will not begin earlier than a date specified in the notice (which cannot be less than two weeks from the date of the service of the notice) and that those proceedings will not begin later than twelve months from the date of service of the notice.
The notice must exactly conform to the requirements of section 8. The Court is sometimes reluctant to make orders on mandatory grounds because it is compelled to make them regardless of the individual circumstances of a case; if there is an irregularity with a notice, it gives the Court a reason to refuse to make the order. We can assist with the drafting of a section 8 compliant notice.
If ground 8 is not appropriate, there is a further, catch all, mandatory option which can be utilised by landlords.
Notice to Quit
All landlords are, upon the expiry of a tenancy’s fixed term and upon the giving of notice, entitled to recover possession of their property. To ensure that there is no delay in commencing possession proceedings should the tenant fail to leave after the expiry of a notice period, landlords should ensure that the notice they give is compliant with section 21 of the Act.
Section 21 provides that a court shall make an order for possession of a dwelling-house if it is satisfied that the assured shorthold tenancy (the fixed term) has come to an end and the landlord has given to the tenant not less than two months’ notice in writing, stating that he requires possession of the dwelling-house. Such notice may be given before or on the day on which the tenancy comes to an end.
Accordingly, if a landlord rents a property for a fixed term of one year under a lease dated 01 March 2012, if they give the tenant notice on 01 February 2013, that notice must be for two months and, accordingly, the tenant must leave the property by 01 April 2013. Between 01 March 2013 and 01 April 2013, the tenant will occupy the property under what is known as a statutory periodic tenancy.
A statutory periodic tenancy is a tenancy which arises upon the expiry of a fixed term where no new term is agreed and the tenant continues to occupy the property. If rent was, as is usual, due monthly, a statutory periodic tenancy amounts to a rolling monthly tenancy. If, as opposed to the example above, a landlord wishes to give a tenant who is already occupying a premises under a statutory periodic tenancy notice, they still can, but slightly different rules apply.
The Court will make an order for possession only if notice has been given, in writing, that ‘after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section.’
This wording is difficult, and is best illustrated by example. A landlord lets a property to a tenant under a lease dated 06 March 2010. The fixed term is for one year and there is a monthly rent, due on 06th of every month. The tenant remains in the property following 06 March 2011, when his fixed term came to an end. On 01 February 2013, the landlord decides he requires possession.
He must still give two months notice, but the date upon which the notice expires must be the last day of a period of the tenancy. The tenancy is monthly, running from the sixth to the sixth. The last day of a period of the tenancy would therefore be the fifth of a month. Two months from 01 February 2013 is 01 April 2013, but the notice must come to an end on the fifth of the month, and so the date specified in the notice must be 05 April 2013.
As with unpaid rent claims, the notice must exactly conform to the requirements of section 21, as an irregularity with a notice gives the Court a reason to refuse to make an order it would otherwise be compelled to make. This firm can assist with the drafting of a section 21 compliant notice.
Upon the expiry of the notice, it is open to the landlord to make a claim for possession. If there are any arrears, the landlord could seek an order that those be paid (the figure may be updated at the hearing if the arrears increase between the time the claim is issued and the time the matter is heard). If no claim for arrears is made, and only an order for possession is sought, the landlord may use the accelerated possession procedure.
Once an order is granted, which it should be provided the grounds are made it, it will usually provide the tenant a fixed period (normally 14 days) to leave. It is possible for a tenant who has had a possession order made against them to apply to the Court for more time; however, if the order has been made on mandatory grounds, the Court cannot delay the eviction for more than 6 weeks from the date on which the order was made.
As can be seen, landlords can take possession when they want or need to, but they must be careful about how they go about it. If the notice is in the proper form, served properly, followed by the appropriate proceedings, the Court will have no choice but to grant possession to the landlord.