3 Years Running: Buy-To-Let Legal Services Award
Evicting a tenant will cost you some legal expenses (even if they are fixed fees) and during the process you might not receive any rent. So, while you want to minimise your legal costs you also want the process to be as quick as possible.
Under the Housing Act 1988 there are only two processes that can be used to end an AST agreement. They are Section 21 and Section 8. There are other eviction processes for different kinds of tenancy but AST agreements are the most common so that's what this article is about.
Step1. Serving a notice.
Whichever procedure we decide to use, Section 8 or Section 21, the tenant must first be served a 'notice'. This is our Step1. Essentially the 'notice' is a legal document that has been drafted and served as required by law. It tells the tenant that if they don't leave by a set date, the landlord will apply to a court for possession.
Serving a notice quickly is a good way to show the tenant you are serious and it gives you options. If the tenant pays you can choose not to act on the notice. If later, the tenant doesn't keep to any agreement you can apply straight away to a court. Serving a notice quickly is a good way of making sure you don't lose too much. Often, serving the notice is all you ever need to do.
Serve a notice yourself?
Some landlord and agents have served notices themselves. They believe they are saving a few pounds but it often ends up costing them more. There are thousands of served notices that are invalid. Only nobody finds out until the case gets to court (Step2). Then, a judge might throw the case out because the notice is invalid or a tenant might put in a defence. If you lose a claim the court will usually order you to pay the tenant's defence cost, which can run to hundreds or thousands of pounds. We estimate about half of all of invalid notices go unchallenged because the tenant leaves without the need to go to court. You can find advice all over the internet about how to serve a notice but it would be impossible to list all the many variables that can make a notice invalid. It seems strange to risk all the costs and the extra lost rent for the sake of our fixed-fee Step1. Sure, we would say that. But it makes sense for you as well.
Using Section 8 or Section 21?
Your situation might allow you to use either the Section 21 or Section 8 procedure, or it might force you to use one of them. We will always discuss your case with to decide which route to take. Often we serve both notices at Step1 (no extra cost) and then act with the one that's going to work best as circumstances change later.
Eviction under Section 21
Under Section 21 a landlord is simply asking for his property back. He is not accusing the tenant of anything. The landlord must give the tenant a minimum of two months notice and not require the tenant to leave before the end of the agreement or break period.
This can be a smooth procedure as long as the landlord has complied with all the tenancy regulations, has drafted the notice correctly and has served it correctly. The notice requires the tenant to leave by a given date. Around 60% of tenants do leave.
If the tenant doesn't go by the date on the notice, the landlord applies to the court (this is our Step2). The tenant is not being accused of anything so there is no court hearing. A judge simply reviews the papers submitted by landlord. If everything is in order, the landlord is granted possession.
It can take about six weeks to get to get a possession order. The court writes to the tenant ordering them to leave (usually two weeks later).
Eviction under Section 8
Under Section 8 the landlord is asking for his property back on the grounds that the tenant has defaulted under the terms of the tenancy agreement. This might be non-payment of rent or any one of several other grounds allowed (by Schedule 2 of the Housing Act 1988).
The tenant is first served a notice (Step1) which includes the landlord's grounds for seeking possession and his evidence (eg: rent arrears schedule). The notice gives the tenant a date by which to leave - at least 14 days after the notice is served.
In 60% of cases, when a tenant receives the 8 notice, they do leave the property. If they don't leave, we can go to Step2 - applying for a possession order from a court. This is when, if the notice or the way it was served did not fully comply with law (all too often) you could end up starting all over again.
In London, it can take 6 weeks before you get a court hearing date. Courts elsewhere aren't so busy, but they can still take several weeks.
At court, we always suggest that the landlord (and sometimes the agent) attends. They are represented by one of our advocates but it helps to have the landlord there as he can verify any facts for the judge.
Using mandatory grounds, as long as we can prove that the tenant has breached the tenancy, the court must grant our landlord possession. If there are rent-arrears we would also seek a money order from the court.
If granted, possession is usually ordered for 14 days later. The tenant may not have been at court and will be written to anyway.
After you have a possession order (Section 21 or Section 8)
Whichever procedure you use, you take the case to court to get the possession order. The court writes to the tenant to order them to leave. Usually this is 14 days later (may extend up to 42 days if eviction will cause the tenant exceptional hardship). Very few tenant remain in the property after receiving a court order. If the tenant doesn't leave, we instruct a bailiff (Step3). The bailiff removes the tenant from the property.
The most important action is your speed
No landlord wants to take action against a tenant. But delay can just mean losing more rent. It can take two weeks to six months to get a tenant out. The secret to success is to act fast. The longer you wait to serve a notice on a tenant, the more rent you stand to lose. And you end up losing sleep too.
It is not a legal requirement but sometimes we serve a Section 8 and 21 at the same time. We don't charge any extra. We will often do this if we feel your grounds for repossession could be questioned if your case does end up in court or if both notices are applicable as correctly drafted and served Section 21 notice has fewer potential complications.
Landlord action was set up by landlords for landlords with problem tenants. That is, tenants who are in rent arrears or break some other part of a tenancy agreement. Landlord & tenant law is a specialist area and we found solicitor charges were too much and too vague. When you have a bad tenant you want to evict them fast. Any landlord would want a bad tenant out. they want advice and help with the law. And that's what we do. We are experts in this area and unlike solicitors, we only act for landlords, never tenants. And we'll help recover the outstanding rent. Our free advice line is open to all landlords and we have carried out thousands of evictions.