The Eviction Process for Tenants

04/08/2020
592
4 min read
When selling a property with a tenant you can either transfer the tenant to the new landlord or you can evict them and sell the property with vacant possession. Although some landlords might like to buy the property with a tenant so as not to lose any rental income, others want a fresh start with vacant property which they'll fill with their own tenant.

These are the 3 steps to evict a tenant and if you need help then please get in contact as our solicitors can handle the conveyancing for the sale and the eviction of the tenant.

    1
    Give your tenant notice of eviction
You must give your tenant at least two months' notice under section 21 of the Housing act 1988 if you want to evict them - this is known as a Section 21 notice. The notice can only be served by a landlord earlier than any fixed term if the tenancy agreement makes provision for it.

There isn't a prescribed format for the serving of the notice, however it must be:

  • in writing; and
  • specify the date of required possession (which cannot be less than 2 months or earlier than the end of the fixed term).

If the fixed term has expired, or the tenancy was periodic, the date specified must be the last day of the rental period.

It's very easy to get the date wrong in this situation, so be careful because if the date is wrong, then you won't succeed in possession.

For example, if the fixed term ends on the 31st December, then this is the date included on the section 21 notice and the date of possession is the 28th February.

Should you exchange contracts with a tenant still in the property?
In most conveyancing contracts it'll state as a special condition that the property is sold with vacant possession. Read more here on what is vacant possession?

If the seller exchanges when there is still a tenant in the property and they have agreed to give vacant possession, if the tenant hasn't moved out before exchange then the seller can't give vacant possession and they are in breach of contract. Read more here on what happens and the costs involved when a seller fails to complete.

With no real control over when a tenant vacates it is best to not exchange until the property has been vacated and then look for as little time between exchange and completion to limit the time the property is vacant and not making any rent.


    2
    Possession Order
If after the 2 months after serving the section 21 notice the tenant doesn't move out, you'll have to go to court to seek a possession order (the court can't make a possession order in the first six months of the tenancy).

For an assured shorthold tenancy you need to have grounds for eviction and to have served the proper notice on the tenant before possession proceedings can start.

There are several mandatory grounds for possession, however the most common two are:

Shorthold tenancy
If the tenancy is an assured shorthold tenancy, you are entitled to a possession order after the fixed term has expired, provided the proper Section 21 notice has been served.

Rent arrears
If there are serious rent arrears at the time of service of the notice (Section 8 notice), and at the time of the court hearing, the tenant is in arrears of rent of more than eight weeks. A Section 8 notice requires possession because of rent arrears.


    3
    Accelerated Possession Procedure
You can also opt for an accelerated possession procedure which is a faster way to gain possession as there is no court hearing, however you have to pay a fee before the action can commence. To start the process for an accelerated possession you'll need to contact the County Court in the area where your property is situated, then fill in a Form N5B claim for possession (accelerate procedure), obtainable from HM Courts service.

Once the from is received at court, they'll post the papers to the tenant, along with a form of reply allowing them to lodge an objection within 14 days, if they wish to.

If you are successful then the court issues an order for possession (normally enforceable 14 days after the order was made) and an order that the tenant pay the court fee. From the issue of proceedings to receipt of the order for possession, these proceedings normally take between 6 and 10 weeks assuming nothing goes wrong.


Important: serving the notice on the tenant

Making sure the tenant receives the section 21 notice is an important part of the eviction process. Sometimes a tenant won't answer the door so they can't have notice served on them. You can deal with this by taking a witness with you whilst you post the section 21 notice through the letter box before 5pm. If you do this then the notice is deemed to have been served on the following day.

 
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