Eviction process overview
Eviction process overview.
IMPORTANT: This is a general overview of the eviction process and is not designed to help anyone take any action without seeking expert help.
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.
Also, the courts are quick to throw out cases where the Notice has been made invalid by something the landlord has done, or failed to do. Then the landlord has to start all over again. So although drafting and serving notice can be the cheapest part of the process, it’s actually the most important.
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. Sometimes we serve both notices at Step1 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 the 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, e.g. 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 the notice, or the way it was served, did not fully comply with the 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, but may extend up to 42 days if eviction will cause the tenant exceptional hardship. Very few tenants 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.
On Section 8 cases, we can instruct a High Court Sheriff to carry out the eviction instead of using a county court bailiff if the judge at court allows leave Under Section 42 of the County Court Act 1984, to ‘transfer up’, the case to the High Court. This process can be much quicker to evict the tenant. Our advocates will make a request for leave at court, but it is up to the judge’s discretion to grant the leave. It is vital that leave is granted on the possession order. There are some ‘eviction companies’ and ‘franchise High Court Enforcement Officers’, guaranteeing 7 day evictions. This is not legally possible, and some operators have been unlawfully evicting tenants without leave, meaning the landlord could be sued for damages by the tenant and the council.
The most important actions are speed and accuracy.
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. A mistake on the notice can make the process even longer. The secret to success is to act quickly and accurately. 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.
If your notice (at Step1) wasn’t drafted or served correctly you risk wasting your court fees and losing a whole lot of time because of a small error.
We won’t let your case anywhere near a court until we have checked every little detail. To make sure you don’t waste time or money, at Step-2 we first only charge part of the fee.
If your notice is fine, then you just pay the balance of the fee and we issue the claim. If there is a problem with your notice or paperwork, we will advise you what to do next.
There are services on the web who will prepare papers BUT they get you to pay the court-fee separately and get you to sign the court papers – so in fact they don’t represent you!
Serving a notice is actually the most important part of the possession process.
It isn’t complicated but one tiny error can cause dreadful problems.
That’s why we say, don’t DIY and don’t use internet amateurs. It’s not worth it.
Our in-house Solicitors are there to get your property back as fast as they can. And we protect landlords and agents from themselves.
As experts, we know that in the rush to get things done, errors can happen. And those errors can can come back later to mess up your case – and the whole process has to start again.
You can speed things up – give us accurate information quickly. Help us to help you.
1. Compliance Errors
If the tenant doesn’t leave at Step1, the notice had better be valid. Because then it has to go to court. Any little error can get a case thrown out. And you have to start all over again.
2. Attempting Short-Cuts.
In an effort to be quick, some internet services aimed at landlords are using short-cuts around the process. But if the tenant doesn’t leave (50%) these practices can backfire at court and the case thrown out.
3. Trying to Save Pennies.
Internet services have mushroomed and landlords can expect to get what they pay for. To get the process done PROPERLY it takes a certain amount of time for an expert to look over a file and be accurate. Our fees cover that expert time.