77 High Street
Tel: 020 8658 3922
Fax: 020 8658 8694
Evicting your Assured Shorthold Tenants
A guide to possession proceedings
Apart from professional landlords, more and more people are letting their homes when they need to move, rather than selling them in a bad housing market. They often mistakenly assume that when the term of the tenancy expires, the tenants will simply leave the property, unless they renegotiate a renewal of the tenancy.
This can often be a time consuming and expensive assumption to make. Tenants “know the ropes” and will often not move out until they are forced to do so. If they apply for social housing they will be told by local authority housing department that they will be considered as making themselves voluntarily homeless if they leave before receiving notice of eviction from the county court bailiff. If this is the case, the Tenant is in a “Catch 22” situation, because if they comply with their contractual obligations they are unlikely to be re-housed by the local authority.
So what can the landlord do to ensure that possession is obtained as quickly as possible?
1. Make sure that the tenancy agreement is well drafted. In particular, so far as possession proceedings, are concerned ensure:
- The period of the tenancy is clearly defined;
- Any deposit is properly held – proceedings cannot be issued unless the court is satisfied that a deposit is properly protected;
- There is a valid break clause (see 4 below);
- Any relevant pre-tenancy notices were given if Housing Act grounds are relied upon (e.g. under Ground 1 Schedule 2 Housing Act 1988 by a landlord who occupied the property as his home that it is required for his or his spouse’scivil partner’s only or principle home)
2. Make sure that the proper Notice to Quit is drafted and served on the tenant either under S.8 Housing Act 1988 or S21 Housing Act 1988
3. How much notice must be given? Under S.8 Housing Act 1988 generally between 14 days and 2 months, and under S21 Housing Act 1988 at least 2 months. It will be therefore be seen that unless a landlord has S8 grounds, it is important to make sure that the correct S21 notice is validly served, as if the notice is invalid it must be re-served not only causing delay, but also possibly allowing a tenant to incur rent arrears.
4. When can a Notice to Quit be served? No possession order can be made in the first 6 months of an Assured Shorthold Tenancy Agreement unless
- there is a valid break clause allowing the landlord to terminate the tenancy earlier and
- the landlord can rely on any grounds set out in Schedule 2 of the Housing Act 1988.
Two month’s written notice under S21(1) notice can be served at any time during the currency of the tenancy but cannot expire before the last day of the tenancy. If notice is not given, after the end of the tenancy period a statutory periodic tenancy will automatically arise. If this happens, a different type of notice must be given under S21(4) Housing Act 1988 but again, 2 months notice must be given before possession proceedings can be brought.
5. What common mistakes are made when serving the Notices? Some mistakes will not invalidate the notice, but the most common and fatal mistakes are:
- miscalculating the period of the notice
- serving the wrong form of S21 notice
It is always therefore advisable before serving any Notice on your tenant to take legal advice.
For advice relating to the matters discussed in this article or landlord and tenant matters generally, contact Janet Long by email at firstname.lastname@example.org
The contents of this article are intended for general information only. It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice. We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.