The Right Way To Go About Evicting Tenants

The Right Way To Go About Evicting Tenants.

Over the last decade, those locked out of home-ownership and others who simply prefer the freedom and flexibility of renting have formed ‘generation rent’. This in turn has paved the way for dozens of byproducts to support the growing demands of landlords and tenants, including the possession industry.

Paul Shamplina has been in the eviction business for over 25 years.  His company, Landlord Action, originated the 3-step fixed fee eviction process, helping thousands of landlords with problem tenants.  As the buy-to-let industry has grown, so have the many rules and regulations involved with letting a property. According to Mr Shamplina, keeping up with changes in legislation, such as that surrounding deposit protection, has never been more important, as failure to comply can impact a landlord’s ability to evict a tenant when things go wrong.

Here, Landlord Action gives a detailed account on ‘The right way to go about evicting tenants?’

Periodic or Fixed-term

If the tenancy is periodic or if the fixed-term has come to an end, landlords can evict fairly easily. There is no need for a landlord to give a reason to the court but they must be able to show that an assured shorthold tenancy was in place and that the correct notice has been served.

A landlord may wish to evict a tenant during a fixed-term, but in order to do so they must have a valid reason. The most common reason is rent arrears but others may include:-

• The tenant has broken the terms of the tenancy, such as subletting

• The tenant is consistently late with the rent payment

• The tenant has damaged the condition of the property

• The tenant has caused nuisance

• The property is being repossessed

“When a landlord has a reason to evict a tenant, such as rent arrears, we always advise landlords to try and make contact with the tenant to see if they can enter into dialogue and come to some agreement. Sometimes tenants default through no fault of their own and communication can help to solve the problem before it is taken any further” says Mr Shamplina.

When tenants fail to communicate properly in an arrears situation, the landlord is left with no option but to take action. The first step is for a landlord to give a tenant written notice of his/her desire for them to leave.

STEP ONE

Serving Notice – Section 8 proceedings

A Section 8 notice is a notice seeking possession, which is served on the tenant when they have breached one or more clauses within the tenancy agreement. A section 8 notice is commonly used when the tenant is in arrears of rent. There are 17 Grounds for possession (17 reasons that the law gives for when a section 8 notice can be issued). Rent arrears being the most popular grounds (Grounds 8,10 & 11 of Section 8 of the Housing Act 1988 as amended 1996).

If a tenant owes a minimum of two months arrears when a notice is served, all three rent related grounds are included within the section 8 notice (8, 10 & 11). If the tenant fails to clear the arrears and/or vacate the property when the section 8 notice expires, then court proceedings are required. The tenant will need to owe at least 2 months rent on the day of the court hearing in order for a landlord to rely on all three grounds for possession.

STEP TWO

Court hearing and what it means:-

Where a claim is for possession and rent arrears (Section 8), there will be a Court hearing before a Judge. The landlord will be required to attend the hearing, or appoint an agent to attend on their behalf.  An agent is a letting agent or somebody appointed to manage the tenanted property on a day to day basis for the landlord. The landlord or agent must be fully conversant with the tenancy and have all relevant paperwork readily available, such as the tenancy agreement and an up to date schedule of arrears at the hearing.

If the tenant clears the arrears prior to the hearing date, then it is unlikely a landlord will get a possession order.

If the claim is successful, the Judge usually grants a 14 day possession order; this means the tenant has 14 days from the date of the hearing to vacate. In the event the tenant does not vacate, the landlord will be required to appoint a bailiff to carry out the eviction. In addition, a Judgment for the arrears of rent may also be granted at which point a landlord may also make a claim for interest and costs.

Paul says “If the tenant is at the hearing and pleads exceptional hardship, they may persuade the Judge to grant longer before leaving. The most a Judge can give is 42 days. We always oppose this as we believe the hardship to be in the landlord’s favour.”

Exceptions

If the tenant reduces the arrears to below 2 months of arrears, then the Judge may order a postponed possession order (provided grounds 10 & 11 have been included in the Section 8 notice), which means the landlord would get a possession order, but the tenant is permitted to stay provided he/she continues to pay the rent each week/month on time and clears the arrears by an agreed and reasonable time. Failure to adhere to the order would mean that the landlord can apply for a Bailiff to execute the warrant of possession i.e. evict the tenant(s).

If a tenant defends the case by, for example, raising a disrepair issue, then proceeding under a section 8 notice only may see the matter adjourned. “In such cases, we would often recommend serving a section 21 notice in addition to a section 8 notice and then only issuing proceedings once the section 21 notice has expired” says Mr Shamplina.

Serving Notice – Section 21 proceedings

There are two types of section 21 notices. One notice is served during the term of the tenancy and one is served when the term of the tenancy has expired.

A section 21 notice is used when the landlord requires possession of the property. The landlord does not have to give a reason for wanting possession of the property and there does not have to be a breach of the tenancy agreement.

Some tenants use a Possession Order under Section 21 to seek housing assistance from their local housing office. If this is the case, tenants are generally recommended by local authorities to remain in the property until a Possession Order has been granted and bailiffs have been appointed to evict the tenant .

What it means:-

Where a landlord’s claim is for possession only (Section 21) and he/she uses the Courts’ accelerated procedure, the tenant will have 14 days to file a defence. If no defense is filed, a landlord can apply to the Court for an Order for Possession. It can take approximately 8 weeks to receive the Order for Possession, depending on the workload of the Court. London Courts are extremely busy and may encounter some delay. Claims under accelerated Section 21 do not enable a landlord to claim for arrears of rent.

Exceptions

There are certain circumstances where the accelerated process will not be able to be used. In such circumstances, a court hearing will be required.

STEP THREE

Eviction – County Court Bailiff

If a tenant fails to vacate on or before the expiry of the Possession Order (which is usually 2-6 weeks), a County Court bailiff must be appointed to carry out the final stage, eviction. Applying for a warrant for eviction can mean the process takes a further 6 weeks. The eviction can only be carried out by a County Court bailiff.

Landlord Action always advises landlords to appoint a locksmith to attend at the same time as the Bailiff in order to assist with entry, if required, and to change the locks. A landlord must wait for the bailiff outside the property (on the street), never inside the property, or in a hallway/lobby. The bailiff will only approach the property if he can see somebody outside.

Mr Shamplina concludes

“It can take a long time to regain possession of a property through the courts, often 4 to 6 months, and sometimes difficult tenants can delay matters even further which is why we always encourage landlords to do everything they can to establish contact and resolve issues, where possible, before taking this route. We appreciate, this is not always possible and it can be a very frustrating and worrying time for landlords, particularly if they rely on the rental income to pay a mortgage.   If this is the case, it is imperative that a landlord acts quickly in order to minimise losses as much as possible.

However, the most important thing to remember is never ever be tempted to harass the tenant in an attempt to resolve the matter. The penalties for harassment are severe and can result in heavy fines, so always seek professional advice and stick to the correct procedures.”

Paul Shamplina is part of a Government Think Tank “The Speeding Up Evictions Working Group”. The purpose of the working group is to provide stakeholders with the opportunity to comment on, shape, and influence DCLG’s (Department for Communities and Local Government) emerging proposals to speed up the eviction process for private landlords.

Precise Treatment Reduces Pain

Detail needs experts. Expert time is worth it when it saves you a costly mistake. Main objective: Get the property back. Best action: Very precise treatment.

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.

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.

Chasing courts for dates, arranging advocates and preparing court papers is time consuming. Especially if you’ve never done it before.

Some landlord and agents have served notices themselves. They believed they were saving a few pounds but it often ended up costing them more.

If you lose a claim, the court can order you to pay the tenant’s defence cost, which can run to hundreds or thousands of pounds.

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.

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!

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.

Courts take the view that possession proceedings can make someone homeless. So they are very careful. If there’s any error in the notice, they throw the case out. It’s the process. Get it right or lose.

If the notice is invalid, you have to start all over again. The weeks or months you’ve waited are wasted. If there were rent arrears, there are now more.

If there weren’t rent arrears, they might now start. More fees. More lost rent. And still no possession. Tenants can be alerted to making a counter-claim.

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