How to Remove Difficult Tenants

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If your tenant is not paying rent­ - or is causing damage to the property - your first instinct is to get rid of them fast. Because the property belongs to you, you might think you have every right to go to your property and change the locks…..but you are wrong. As frustrating and costly as it may be, there are certain processes that need to be adhered to in order to stay on the right side of the law. If you fail to do things correctly, you could find yourself being the one in trouble with the courts and found guilty of harassing or illegally evicting your tenants.

Here is an explanation of the procedures required in England – please note that different rules apply in Wales and Scotland.

What is the eviction process?

To begin the eviction process, you first need to work out which of the two possession procedures you should use.

If the tenant owes you rent, you should use the ‘standard possession’ procedure. If you’re trying to evict a tenant for a reason other than unpaid rent, you may be able to use ‘accelerated possession’. We’ll learn more about accelerated possession later in this blog.

It’s likely that your tenant is renting under an Assured Shorthold Tenancy. Under an AST, you need to follow a strict set of steps in order to regain possession.

First, if you are regaining possession at the end of the tenancy, you must serve a Section 21 notice to quit, sometimes referred to casually as a tenant eviction letter.

It is important to note that you must give the tenants at least two months’ notice if you are using a Section 21 notice. In addition, if the tenancy began after 1 October 2015, you must also complete Form 6a, designed for a no fault possession notice under an AST. You can download that here. There are several legal requirements that you must have followed at the start of the tenancy – and be able to prove that you have done so.

You cannot use a Section 21 notice if any of the following apply:

  • It’s less than 4 months since the tenancy started or if the fixed term has not ended­ unless there’s a clause in the contract which allows you to do this

  • The tenancy started after October 2015 and you have not used form 6a or a letter with all the same information on it

You also cannot use a Section 21 notice if you have not given the tenants copies of:

You must have given your tenants the gas safety certificate and the ‘How to rent’ guide before they moved in.

You must have also given your tenants a copy of the property’s Energy Performance Certificate before they rented the property.

However, if the tenants have broken the terms of the agreement and you wish to regain possession during the term of the tenancy, you should use a Section 8 notice. You can download a template here. You must give details of which terms of the tenancy the tenants have broken, for example, non-payment of rent. The Housing Act specifies 17 grounds on which you can regain possession through these means ­- you may wish to speak to a solicitor if you are unsure.

What if they won’t accept the notice?

It is not uncommon for tenants to refuse to accept the notice, for example, by refusing to open the door. In these cases, you should go to the property with a witness and post it through the letterbox before 5pm. The courts will then consider it delivered the next day.

However, often landlords wish to avoid confrontation with tenants. In these cases, you may wish to consider contracting with a professional server. Make sure you get a certificate of service from the agent to use in court.

What is a possession order?

Sometimes the tenants refuse to leave on the specified date. In these cases, you should apply for a possession order. In some circumstances, you may be able to do this online. It will currently cost £325 to begin this process. You can apply online here: https://www.gov.uk/possession-claim-online-recover-property

You can use the online possession claim service if the tenant owes you rent or if they have broken the tenancy for other reasons, for example, forfeiture. However, you cannot use the online service in cases where, for example, there has been a trespass on your property. In these circumstances, you need to complete and return the paper form.  

What is accelerated possession?

Accelerated possession is a process that you may be able to use if your tenants have not left the property by the date specified on your Section 21 notice and you are not claiming unpaid rent. You may also wish to use an accelerated possession - even if you are claiming arrears - and then make a separate court claim for those.

The advantage of the accelerated possession process is that it is sometimes quicker than standard possession and, crucially, there is generally no court hearing which can otherwise be stressful and disturbing for both landlord and tenant. You can download the forms for accelerated possession here:  https://www.gov.uk/evicting-tenants/accelerated-possession-orders

After you have applied to the court, your tenants will receive a copy of the documents. They then have 14 days to respond. Following that, a judge will normally issue a possession order. However, if the tenants raise a reasonable challenge - or if you’ve made an error on the forms - a court hearing may still be scheduled.

Be aware that most tenants who have received an eviction notice will get professional advice either from the Housing Department at their local council or from Citizens Advice. These bodies will be looking to prevent your tenants from being made homeless at all costs and will most likely advise them to stay put until a possession order has been served. If the tenants leave before the section 21 expires, for example, they are - in the eyes of the council - making themselves “intentionally homeless” and therefore the council will be unable to provide emergency accommodation.

It can be a long and complicated process either way, but you must ensure you follow the correct procedures to avoid being sued by your tenants – and it does happen, more often than you would believe!

If it sounds confusing in any way, the best course of action is to use an ARLA registered Letting Agent to serve the documents for you (most will do this for you even if you are not using them to manage your property – for a fee, obviously). 360 Properties has been successfully and legally evicting tenants for 3.5 years and are always at the end of the phone, 7 days a week to give advice.

Alternatively, you can speak to a solicitor who specialises in property. Painsmith and Landlord Law are both well respected in the industry and offer a wealth of advice and support services:

https://painsmith.co.uk
https://landlordlaw.co.uk

Francis Buchanan