Evicting a tenant: How to do it (and do it legally)

Unfortunately, one of the downsides of being a landlord means, from time to time, you might have to evict a tenant.

This could be because you need possession of your buy-to-let property in order to sell it, or it could be because your tenant has fallen behind with their rent or damaged your property in some way.

Either way, evicting a tenant who doesn’t want to leave is never a great experience.

Landlords who choose to have their property managed can allow their lettings agent to take charge of the eviction process, knowing all legal obligations will be taken care of.

Can I evict my tenant?

Yes you can. It is your property, after all.

But there is a legal process to go through which, if not followed to the letter, could land you in hot water and end up costing you a lot of money.

By using a lettings agent’s management service, landlords are provided with crucial peace of mind that their legal obligations during an eviction process are being dealt with.

Put simply, an eviction process is a management fee well spent!

There are two ways of evicting a tenant who has signed an assured shorthold tenancy agreement in the UK and we’ll explore those in more detail…

A section 21 eviction

This notice falls under the Housing Act 1988 and should be used when you wish to gain possession of your property at the end of a fixed term tenancy or during an agreed break clause.

If you use a lettings agent to manage your property, the notice should be issued on your behalf.

Important things to remember when issuing a section 21 notice:

* You don’t have to give a reason to the tenant

* You must give the tenant two months’ notice

* You cannot issue a section 21 notice during the first four months of a tenancy agreement

* A section 21 notice is valid for six months from the date of issue

* You must have lodged the tenant’s deposit with one of the three government-backed tenancy deposit schemes

* In order for a section 21 notice to be valid you must have issued the tenant with a valid gas safety certificate, an Energy Performance Certificate (EPC) and a copy of the government’s How To Rent guide at the start of the tenancy

A section 8 eviction

If you are attempting to evict a tenant because they have breached the terms of their tenancy agreement, a section 8 eviction notice should be served.

Common reasons for landlords issuing section 8 notices include:

* Rent arrears

* Damage to property

* Nuisance

Again, for landlords using managing agents, a section 8 notice should be issued if required as part of the managed services agreement.

Things to remember when issuing a section 8 notice:

* You must specify which terms of the tenancy agreement have been breached

* You must give between two weeks and two months’ notice depending on the terms breached

* A section 8 notice does not guarantee eviction, as the tenant may choose to ignore the notice and let court proceedings commence

The difference between a section 21 and section 8 notice

The main difference between a section 21 notice and a section 8 notice is when they are used.

A section 21 notice is issued at the end of a fixed term tenancy in order for you to gain possession of your buy-to-let property, while a section 8 notice is issued during the tenancy if the agreement has been breached.

However, you may be better issuing a section 21 notice even if your tenants have breached the agreement if the tenancy’s fixed term is also due to end.

That decision, though, will largely rest on whether your tenant is in arrears with their rent and whether you wish to make a claim to get that money back.

A good lettings agent will be able to advise on the best course of action to take as part of their full management service.

Possession orders

Regardless of which notice you issue, if your tenant refuses to leave after the notice period has expired, you will need to issue them with a possession order.

This is where the notice you issued your tenant with becomes a key factor.

Under section 21 notices, landlords can use an accelerated possession order, which can exclude the need for a court date and could help you regain possession of your property sooner.

This accelerated process cannot be used for section 8 notices.

However, under the accelerated procedure you cannot make a claim for unpaid rent, so if your tenant is in arrears, you may be better using a standard possession order which allows a claim to be made.

The standard possession order, though, which can be used for both section 21 and section 8 notices usually results in a court hearing.

Again, landlords using a letting agent to manage their property should seek advice on the best possession process to use.

If your tenant still refuses to leave the property after the order of possession has expired, your next step is to instruct county court bailiffs to evict.

Landlord responsibilities

As well as following the eviction procedure to the letter, which is best done through a letting agent managing your property, landlord should ensure all their other responsibilities are taken care of.

Those that affect your ability to issue a section 21 notice include making sure:

* Your tenant’s deposit is lodged with one of the tenancy deposit schemes

* You issued your tenant with a copy of the property’s gas safety certificate, Energy Performance Certificate (EPC) and government’s How To Rent guide at the start of the tenancy

* Your property is licensed if it needs to be (for instance a House in Multiple Occupation (HMO))

Your other responsibilities as a landlord include:

* Ensuring you are General Data Protection Regulation (GDPR) compliant

* Carrying out five-yearly electrical inspections if your property is an HMO

* Making sure all electrical appliances are safe

* Installing smoke alarms on every floor of the property and carbon monoxide alarms in rooms with a solid fuel source

* Performing a legionella risk assessment

* Ensuring you are compliant with Minimum Energy Efficiency Standards (MEES)

If you have any questions about your rental property, get in touch with your local Martin & Co office.

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